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[2010] WASCA 83
Court of Appeal (WA)
2010-05-04
Owen JA
Original judgment source is linked above.
Second Respondent : State Solicitor for Western Australia
1 OWEN JA: The appellant and the respondent in CACV 85 of 2007 were serving police officers. The respondent instigated a prosecution against the appellant for corruption in relation to an investigation in which he (the appellant) was involved. The prosecution was discontinued by the filing of a nolle prosequi. The appellant then sued the respondent for damages for malicious prosecution, abuse of process, injurious falsehood and misfeasance in public office.
2 This is an appeal against the decision of the trial judge dismissing the appellant's claim against the respondent. There are, in fact, two appeals: a challenge to the trial judge's findings on the merits and a complaint about certain costs orders that he made. The appeals were heard together and these reasons cover both. In the costs appeal there is a second respondent; namely, the State.
3 It is also an application by the respondent to strike out various paragraphs of the appellant's grounds of appeal. In these paragraphs the appellant contends that the trial judge erred in not finding that, in laying the charges, the respondent was actuated by malice because, among other things, the sole or dominant purpose of the prosecution was to relieve pressures brought to bear on the respondent and the police generally. The strike out application is brought on the basis that the allegation of 'pressure' was not pleaded in the statement of claim and only arose from the trial judge's questions to the witness. If pressure had been pleaded, the respondent would have led evidence to meet the allegation. It will be convenient to deal with the impugned paragraphs as part of the general analysis and to return to the strike out application if it becomes necessary.
4 It will be convenient if, in the balance of these reasons, I refer to the appellant as 'Noye' and to the respondent as 'Robbins'.
5 The facts of this case are complex and involve a large cast of characters. I propose to commence with a short summary of the facts which gave rise to these proceedings. It will, however, be necessary to refer to some factual issues in more detail later in these reasons.
6 The appellant Jeffrey Noye was a Senior Sergeant in the Western Australian Police Service (WAPS). He was a detective who had been assigned to conduct the second of three phases of investigations into thefts of diamonds from Argyle Diamond Mines Pty Ltd in Western Australia (Argyle). The respondent Stephen Robbins was an Inspector in the Internal Affairs Unit (IAU) of the WAPS who had been assigned to investigate allegations of corruption by police officers, including Noye, arising from their involvement in the investigation of the thefts from Argyle.
7 I have included as a Schedule to these reasons a chronology of the main events. The chronology has been taken from [162] of the reasons for decision, supplemented by the parties' chronologies in the appeal book and from my own research of the materials in the court record.
8 In the summary of the facts that is to follow I will mention a number of people. There are some who may not be mentioned in the summary but whose names appear in the Schedule. They are Deputy Commissioner Zanetti, Commander Hancock (CIB), Detective Sergeant Lampard (Hancock's staff officer), Superintendent Alan Watson (IAU), Superintendant Storm (deputy to Assistant Commissioner Ayton), Superintendant William Round (staff officer to Assistant Commissioner Ayton), Superintendant Dalton (senior officer of the CIB Executive) and Superintendant Max Kiernan.
9 In 1989 Argyle became concerned about the appearance of pink diamonds for sale in Europe and suspected that they were being illicitly sourced from its mine. As a consequence the police commenced an investigation into whether theft was occurring from Argyle. They came to suspect that one Lindsay Roddan had come into possession of some pink diamonds in suspicious circumstances and was operating with somebody within Argyle to steal diamonds from the mine.
10 Over the years there were, relevantly, three phases of the investigations by police officers into the alleged thefts of diamonds from Argyle. This was a long running and contentious investigation which gave rise to intense differences of opinion, rivalries, and mutual suspicions by officers of the WAPS who had been involved. This led to allegations of corruption by some officers against, not only Noye, but also against many other officers, including officers senior to him.
11 There were some unusual aspects to the WAPS investigations and they were regarded as inadequate and unsatisfactory by the senior security personnel of Argyle who, throughout the proceedings, attempted to conduct their own parallel investigations. This process led to resentment arising between the police officers conducting the investigations and their superiors on the one hand, and the senior personnel of Argyle on the other.
12 In January 1990 Robin Thoy, a Detective Senior Sergeant in the WAPS, commenced an inquiry into whether Roddan was involved in stealing diamonds from Argyle. He was assisted by Detective Sergeant Edward Gwilliam.
13 In February 1990 the police seized a number of diamonds held by a jeweller, Noel Newton, on consignment for Roddan. They believed that these diamonds had been illicitly sourced from Argyle, but did not know how this had occurred. Roddan demanded the return of the diamonds, which he claimed were not from Argyle and may have been sourced from another mine.
14 Meanwhile, Thoy and Gwilliam had been liaising with an Argyle security officer, Barry Crimmins, to try to determine how diamonds might have been obtained illegally from Argyle. Barry Crimmins said that he did not suspect that anyone at the site was stealing diamonds (aside from one person later found to be innocent). He did not divulge any knowledge of, or an association with, Roddan. In the balance of these reasons I propose to refer to Barry Crimmins as 'BC'.
15 As the investigation progressed Thoy and Gwilliam grew frustrated by what they regarded as their superiors' reluctance to grant them the resources and authority needed to run the inquiry effectively. The relationship between the WAPS and Argyle began to break down as officers within Argyle had misgivings with the way the inquiry was proceeding.
16 In the middle of 1990 the WAPS received an unexpected breakthrough when they learned, through an informant, that BC and Roddan were good friends. Some of Thoy's angst arose because he believed that information concerning his activities was being leaked to Roddan by sources within the WAPS. It was later to be revealed that it was BC (not police officers) who was passing information to Roddan. Around the same time an audit revealed that a number of diamonds were missing from WADT, a marketing vehicle for Argyle's diamonds.
17 In August 1990 interpleader proceedings were commenced in the District Court to determine whether Roddan or Argyle was entitled to the diamonds the WAPS had seized. Thoy and Gwilliam supported Argyle in these proceedings. The main thrust of Argyle's argument was that the pink diamonds held on consignment for Roddan could only have been sourced from Argyle.
18 Thoy was instructed (despite his objections) to cease his inquiries and in December 1990 he submitted his final report on the matter. The report revealed that there was a strong likelihood that diamonds had been illicitly sourced from Argyle and that Roddan was somehow involved. It also revealed that there were good reasons to continue the investigation. By this stage Thoy and Gwilliam harboured feelings of distrust and suspicion towards some of their superiors, whom they felt were preventing them from conducting an investigation that needed to be done.
19 In February 1992 Deputy Commissioner Zanetti appointed Noye to prepare a preliminary report on whether the Argyle investigation should be reopened. On 20 February 1992 he presented a preliminary report in which he identified the probable existence of systematic stealing of diamonds from the Argyle mine by Argyle staff. The preliminary report recommended the continuation of the investigation on several fronts, identifying Roddan and BC as the major suspects, but also suggesting other courses of inquiry.
20 In early March 1992 Noye was instructed to proceed with the investigation. Gwilliam was assigned to assist him. As part of the inquiry, Noye interviewed a number of persons of interest, including Lynette Crimmins, BC's wife from whom he was separated. I will refer to Lynette Crimmins as 'LC'.
21 Noye came to doubt whether a case could be made against Roddan and BC, and whether any diamonds had actually been stolen from Argyle at all. Noye formed the view that it was possible that the seized diamonds had come from sources other than Argyle, or had been obtained legitimately from Argyle. Gwilliam, who was assisting Noye, became critical of Noye and believed that Noye was not pursuing the case aggressively enough. He refused to play any further part in the investigation and was vocal in his criticism of Noye.
22 There were several aspects of the investigation which were unusual. Some of them are referred to in the Schedule. Noye met Roddan alone on several occasions and did not record the conversations or take notes. These meetings would later arouse suspicions of corruption. Noye's explanation was that the purpose of those meetings was to try to move along the interpleader proceedings in the District Court.
23 In early September 1992 LC's home in Highgate was burgled. She phoned Noye, who was on other duties, and he told her to report it to the local police and promised that he would attend. He did come to the scene and helped her to fill in an insurance claim for her stolen property. The insurer later paid LC $16,000 to settle the claim.
24 In the course of his investigations into the Argyle diamond inquiry, Noye had liaised with representatives of the Australian Federal Police (AFP) to obtain access to classified police intelligence relating to Roddan and any of his associates. As a result, Noye was provided, on a confidential basis, with an AFP information report relating to information recorded concerning Roddan. It appears that Roddan had come under police notice for suspected involvement in drug dealing. This attention arose from the reports of a federal prisoner named D'Anna. The AFP investigation revealed contact between Roddan and D'Anna, although there was no evidence that directly implicated Roddan in any drug offence and there was little revealed about criminal propensity by Roddan. The AFP investigation ceased and the information (the D'Anna report) was relayed to the State police.
25 In September 1992 Noye submitted a draft report to his superiors and in late October 1992 he delivered his final report. In it, he concluded that there was insufficient evidence to sustain charges against Roddan, insufficient evidence to connect any person with the theft of diamonds from Argyle and insufficient evidence to substantiate the allegation that diamonds were being stolen from Argyle. But Noye went further and added this conclusion:
I can categorically state that I am confident that at no future time will any evidence be disclosed that will probably show that:
1. the diamonds claimed by [Roddan] were illicitly removed from the control of the complainant, [Argyle] by any person; and
2. there is any valid evidence of the existence of an organised consortium of mine staff and, or others, engaged in the theft of diamonds from the Argyle mine site or alluvial areas between 1988 and 1990.
26 Noye's report was submitted to Assistant Commissioner (Crime) Leslie Ayton, who had recently been promoted from the rank of Inspector and who was later to become Deputy Commissioner. Ayton conducted a preliminary evaluation of the report in conjunction with Superintendant Storm. Neither Ayton nor Storm nor anyone else in authority appeared to question Noye's investigation or recommendation.
27 The marriage between BC and LC broke down and the latter formed a relationship with Roddan. BC had moved to the Eastern States and was living in Shepparton. In October 1992 Noye went on leave and visited relatives in Victoria. While he was there he decided to visit BC in Shepparton. Until then Noye had only ever communicated with BC by telephone. He did not inform his superiors about his intentions, nor did he seek their permission to meet BC.
28 BC was later to tell Robbins that before Noye arrived he received a telephone call from LC in Perth advising him of Noye's imminent arrival and intimating that Noye was on Roddan's payroll. He (BC) said he found Noye's behaviour very unusual. Noye, having no other accommodation, ended up staying the night at BC's home. Noye behaved in a manner that BC took as confirming his suspicion that Noye was on Roddan's payroll.
29 The relationship between LC and Roddan, which commenced in mid‑1990 after the former had separated from BC, was not a match made in heaven. Roddan had exploited her and had borrowed money which was never repaid. According to LC, Roddan had been abusive towards her and had forced her into prostitution. In January 1993 LC was arrested after being involved in a series of acrimonious and violent altercations with Roddan. When she was taken into custody she made allegations that BC and Roddan were involved in stealing diamonds from Argyle. She also said that Roddan had boasted to her that the police investigation would go nowhere because he had Noye 'in his pocket' and that Noye was to be paid $200,000 from the proceeds of the thefts.
30 Following the allegations of corruption, the police reopened the investigation. They also decided to investigate the allegations of police corruption in relation to Noye's Argyle investigation.
31 I should mention here an incident that occurred in January 1993 and which was later to become a subject of the internal police disciplinary charge against Noye. Roddan telephoned Noye and explained that he had come into the possession of certain firearms and asked what should be done with them. Noye consulted the police computer records and ascertained that the firearms had been stolen in a break-in in November 1992. Rather than take any action himself to confiscate the firearms, Noye provided Roddan with information about the identity of the reputed owner of the firearms and suggested that Roddan communicate with the local police officer directly. Roddan, instead, contacted the owner and later returned the firearms and, in the process, collected a reward from the owner.
32 The third phase of the Argyle investigation was carried out by Inspector Peter Lavender and Gwilliam. Although Lavender was nominally in charge, Gwilliam was the driving force of the investigation. Gwilliam was convinced in his own mind that Noye was corruptly involved with Roddan and BC. The animosity by Gwilliam towards Noye is known to have been deep rooted. In fact, Gwilliam was later to be charged with giving false evidence on oath in the Court of Petty Sessions involving Noye, which led to an indictment for perjury. The charges against Gwilliam were eventually withdrawn. It seems that Gwilliam repeatedly disobeyed Lavender's instructions during the course of this phase of the investigation.
33 At the same time, a separate internal review task force was set up to investigate the allegations of corruption levelled by LC. It was headed by Robbins.
34 In April 1993 Robbins, in company with a Victorian police officer, visited BC in Shepparton. BC made no admissions but seems to have been shaken by what he was told. Certain observations which BC made during the course of that interview caused Robbins to entertain more serious suspicions of Noye. In particular, BC told Robbins about Noye's November 1992 visit to Shepparton. The meeting concluded on the footing that BC would think about his position. His reaction led Robbins to conclude that he may be close to a breakthrough.
35 In August 1993, BC contacted Gwilliam and made arrangements to meet him in Kununurra. It seems that BC made this approach because of concerns about his position following Robbins' visit to Shepparton in April 1993. Gwilliam informed Robbins and they both flew there and interviewed BC. He confessed to stealing diamonds with Roddan and he also implicated LC. He also said that he had been told by LC that Roddan had boasted that he was paying off Noye, but had no direct evidence of corruption against Noye. The closest thing he had to evidence of corruption was Noye's strange visit to Shepparton. It seems clear that various inducements were offered to BC in exchange for his cooperation, although details were not disclosed during the trial.
36 The effect of BC's confession was to confirm in the minds of the police officers concerned that there had been thefts of diamonds from Argyle and that Roddan was involved. It also showed Noye to have been either dishonest or badly mistaken in his conclusions.
37 On 10 August 1993 Roddan was arrested and a detailed search of his house was conducted. Police allege that a copy of the D'Anna report was one of the documents found in Roddan's possession. Exactly how and where the report came to be discovered is not clear but Noye alleged it was 'planted' by Gwilliam (either at the house or later at police headquarters) in an attempt to discredit him.
38 Robbins took advice from the Office of the Director of Public Prosecutions (DPP). On 12 November 1993 Robbins made complaints against Noye alleging indictable offences involving corrupt complicity relating to the Argyle investigation; namely:
(a) that Noye had, in his investigation, deceitfully misrepresented the true evidence available in relation to the offences committed by Roddan and BC, contrary to s 143 of the Criminal Code;
(b) that Noye had given Roddan a copy of a soil analysis report which was his duty to keep secret, contrary to s 81 of the Criminal Code; and
(c) that Noye had given Roddan a copy of the D'Anna report which was his duty to keep secret, contrary to s 81 of the Criminal Code.
39 He was immediately suspended from duty. A few days later he was also charged with four internal police disciplinary offences. Those charges were instituted by an Inspector Dawson but it is not in dispute that the information on which they were based was collected by Robbins in the course of his investigation. Those charges were:
(a) submitting a report on the Argyle diamond inquiry knowing it to contain false and misleading information;
(b) without lawful excuse, disclosing the D'Anna report to Roddan;
(c) without lawful excuse, disclosing confidential information, namely an Argyle soil analysis report to Roddan; and
(d) failing to take appropriate action after becoming aware that Roddan had stolen firearms in his possession.
40 In February 1994 the three charges of criminal offences were reformulated and a further three charges were added. These three extra charges were based on allegations made by LC that Noye had committed insurance fraud contrary to s 409(1)(b) of the Criminal Code when he had helped her fill out insurance claims after her house was burgled.
41 Noye denied both the criminal charges and the internal disciplinary charges.
42 BC was charged with offences relating to the theft of diamonds from Argyle. LC was also charged with related offences. They were indicted and on 8 February 1994 each pleaded guilty to those charges on arraignment before the District Court. On 16 February 1994 BC was sentenced to imprisonment and has since served that sentence. LC was released on a conditional bond. Each agreed to provide evidence against Roddan, implicating him in an unlawful conspiracy to steal diamonds from the Argyle diamond mine and to distribute them unlawfully in Western Australia and elsewhere. They also agreed to give evidence against Noye. In the transcript of the sentencing proceedings in the District Court, the sentencing judge noted that they had cooperated with police and had agreed to testify in respect of future prosecutions. It can be assumed that these considerations led to a lesser sentence than would otherwise have been imposed, although the quantum of the discount was not disclosed. I note, in this respect, that sentence was passed before the coming into operation of the Sentencing Act 1995 (WA) and thus before s 8(5) had been enacted.
43 In April 1994 a preliminary hearing was held to determine whether the charges against Noye ought to go to trial. At the end of this hearing Noye was committed to stand trial before the District Court on all six charges.
44 Between December 1994 and June 1998 three indictments were laid by the DPP against Noye. These indictments contained the allegations in relation to misrepresenting the evidence against the Argyle theft suspects, the handing over of the secret reports and the insurance fraud. Noye was also charged with disclosure of official secrets (namely, the D'Anna report) but this charge was never the subject of an indictment.
45 The first indictment was dated 5 December 1994. It was laid against Roddan and Noye jointly and contained nine counts; namely:
(a) three counts of conspiring with Roddan, BC and LC, or with Roddan and LC, to steal diamonds the property of Argyle over distinct, but overlapping periods between 15 March 1988 and 19 August 1993;
(b) three counts of insurance fraud relating to LC's insurance claim;
(c) one count of conspiring with Roddan to pervert the course of justice by deflecting or frustrating the possible institution of criminal proceedings against Roddan and others; and
(d) two counts of publishing a document (Argyle soil analysis report) which it was his duty to keep secret.
46 The second indictment (dated 1 October 1997) was also laid against Roddan and Noye jointly. It contained three counts, namely:
(a) one count of conspiring with Roddan to pervert the course of justice by deflecting or frustrating the possible institution of criminal proceedings against Roddan and others;
(b) one count of publishing documents (further Argyle soil analysis reports and a spectrum report) which it was his duty to keep secret; and
(c) one count of insurance fraud relating to LC's insurance claim.
47 The third indictment, again presented against Noye and Roddan jointly, was dated 2 June 1998. This contained a single count of conspiring with Roddan to pervert the course of justice by deflecting or frustrating the possible institution of criminal proceedings against Roddan and others.
48 In October 1998 the prosecuting counsel announced in open court that the Crown would not proceed with any of the three indictments then pending against Noye and Roddan, nor would it prosecute the charge relating to disclosure of the D'Anna report. A nolle prosequi was then presented to the court in relation to each of the three indictments and a separate nolle prosequi was handed up in relation to the charge of disclosing official secrets. In explaining the decision the prosecutor said there had been a number of recent events affecting the prosecution brief but that it was 'not presently in the interests of justice to detail them all, notwithstanding legitimate public interest in those matters'. One matter related to the health and general attitude of the key Crown witness who had 'indicated a firm resolve to give no assistance whatever to the Crown'. The prosecutor then said:
In the light of that and various other matters which have arisen, the Crown has reassessed its case. Whilst no one factor of itself would justify the termination of the prosecution, the combination of factors has led to the conclusion that the continuation of proceedings is no longer in the public interest. Accordingly, the Director of Public Prosecutions has signed a nolle prosequi to terminate the prosecution, which I now tender.
49 The trial judge was later to characterise these comments as amounting to a suggestion that, despite the Crown choosing not to prosecute, Noye was nonetheless guilty.
50 On 7 December 1993 Noye appeared before the Commissioner on the four internal disciplinary charges and pleaded not guilty. By that time the criminal proceedings had been commenced. The disciplinary proceedings were held over pending the resolution of the other charges against Noye and were eventually dropped. Noye never admitted, and was never convicted of, any of those charges.
51 Noye and Roddan commenced this action against Robbins for malicious prosecution, injurious falsehood and misfeasance in public office. They also brought an action against LC for malicious prosecution and injurious falsehood. Although Noye and Roddan were co-plaintiffs, they were separately represented. Roddan's solicitors were removed from the record and Roddan was unable to afford alternative representation. The trial judge made an order severing the interests of Noye from those of Roddan in both actions. Roddan's claims have not been pursued and they can be put to one side.
52 Noye's actions against Robbins and against LC were heard together. The trial judge dismissed the claim brought against Robbins and that is the subject of this appeal. His Honour also rejected the claim against LC based on malicious prosecution but upheld it in so far as it relied on a cause of action in injurious falsehood. He awarded damages of $272,676 against LC. An appeal was instituted by LC and that appeal has been compromised, although the terms of the compromise have not been revealed. His Honour also made a provisional assessment of the damages he would have awarded had Noye been able to establish a cause of action against Robbins. He assessed the level of damages that would have been awarded for malicious prosecution at $287,676. It may be that, through the compromise of the appeal instituted by LC, the damages award might have to take into account the extent to which it has already been satisfied or compromised.
53 Noye now appeals against the decision of the trial judge dismissing his claims against Robbins. He also appeals against the provisional assessment of damages. In the second appeal he challenges the trial judge's orders concerning the costs of the action against Robbins.
54 It is, I think, necessary to describe the pleaded case in a little more detail. The statement of claim contains the following essential points.
(a) he knew that LC was a key witness and that she was unreliable (being mentally unstable, inclined to use alcohol and drugs to excess, was biased against Roddan, had made inconsistent statements, had admitted criminal conduct and had a propensity to lie);
(b) he knew that Thoy and Gwilliam were biased against Noye, lacked objectivity in relation to the Argyle diamond inquiry and were trying to influence LC;
(c) he knew that BC, another key witness, was unreliable (having admitted to criminal conduct and having made different statements);
(d) he failed to interview Roddan about the allegations made by BC and LC or to obtain corroboration of their stories; and
(e) he did not believe (or was reckless as to the truth of) the evidence of BC and LC.
(a) he had no honest belief that Noye was guilty or that the evidence of the key witnesses was true; and
(b) he knew that a successful prosecution of Noye would secure for him a career promotion.
55 In his defence Robbins said that when the complaints were made he considered that there was a reasonable prospect of conviction. He had received advice from the DPP to the effect that:
(a) there was a reasonable prospect of conviction;
(b) the matters ought to be put to a jury for determination; and
(c) the complaints to be made ought to be made.
56 In relation to the specific matters concerning reasonable and probable cause (for example the unreliability of Gwilliam and of BC and LC) he effectively joined issue, although he did say, specifically, that he did not doubt Gwilliam's honesty and that he conducted all investigations that he considered were warranted and necessary. In relation to the claim of malice, Robbins said that his application for a promotion to the substantive rank of Inspector was made and determined before the committal proceedings and that a prosecution of Noye (successful or otherwise) was not relevant to other promotions and was not considered in the course of his promotion.
57 The defence contains two specific areas of denial that I should mention. First, Robbins denied that the proceedings were terminated in favour of Noye, pleading that the entry of a nolle prosequi is not, of itself, a termination of the proceedings in favour of Noye. Secondly, Robbins denied that he continued or was actively involved in the continuation of the complaints and counts. He said that after November 1993:
(a) the DPP had the conduct of the prosecutions independently of the WAPS;
(b) he ceased to have the conduct of the complaints and the counts and only took action in relation to them under the direction of the DPP; and
(c) from July 1994 he ceased active duty with the Internal Affairs Unit and thereafter his only role was to provide a deposition at the request of the DPP.
58 The reasons for decision are long and complex. What follows is no more than a brief summary. I have tried to distil the essential components of the reasons that relate (relatively) directly to the issues raised in the appeal. It may be necessary to look more closely at some aspects of the reasoning process in the analysis of those issues.
59 Having related the essential facts, the trial judge turned to the elements of the several causes of action and the way the facts applied to each cause.
60 In the balance of these reasons, unless otherwise indicated, a figure in square brackets is a reference to the paragraph number in the trial judge's reasons for decision.
61 The trial judge commenced by setting out the elements of the tort of malicious prosecution; namely:
(a) the defendant instituted the proceedings, or was instrumental in their institution and (or) continuation;
(b) the proceedings were terminated in the plaintiff's favour so far as such an outcome was possible;
(c) the defendant's conduct was without reasonable and probable cause;
(d) the defendant was actuated by malice; and
(e) that as a result, the plaintiff suffered damage of at least one of the three specific heads identified by Holt CJ in Savile v Roberts [1792] EngR 2096; (1698) 1 Ld Raym 374; (1698) 91 ER 1147.
62 I do not understand his Honour's identification of the elements of the tort to be in issue.
63 With regard to the criminal proceedings, the trial judge held that Robbins was the prosecutor of the charges because, ultimately, it was his decision to lay them and he remained the named complainant until Noye's committal: [665]. He did not cease to be the prosecutor for the purpose of determining tortious liability merely because of the intervention of law officers of the Crown in the prosecution and trial on indictment: [666].
64 With regard to the internal disciplinary charges, the trial judge held, largely on the authority of Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419, that no claim for malicious prosecution could lie against Robbins: [220] - [229]. This was because the tort does not apply to internal disciplinary proceedings. In any event, even if the tort did apply to internal disciplinary proceedings it would not have been made out because the charges were not actuated by malice (see discussion below).
65 The trial judge, applying Davis v Gell [1924] HCA 56; (1924) 35 CLR 275, found that the mere filing of a nolle prosequi could not of itself be taken as terminating the proceedings in the plaintiff's favour. He went on to examine other evidence which, when taken together with the filing of the nolle prosequi, proved on the balance of probabilities that Noye was innocent of the charges: [246].
66 In this case there was little difficulty in finding that, on the balance of probabilities, Noye had not committed the offences and the proceedings were terminated in his favour. Noye had always maintained, and had given sworn evidence at the trial, that he never corruptly agreed or decided to write-off the investigation into the theft of diamonds from the Argyle mine. Neither of the defendants at trial had set out to prove that Noye was indeed guilty of all or any of the charges laid, although LC did give evidence to the effect that Noye had repeatedly accepted cash money from her. The trial judge rejected that evidence. His Honour concluded [250]:
I am satisfied that on all the evidence it should be concluded that the criminal proceedings were terminated in Noye's favour and that the attempts, such as they were, to show that he was guilty of any of the offences have failed. He has denied guilt, and has the benefit of the presumption of innocence. This means that he is able to maintain his actions for malicious prosecution.
67 According to his Honour, the reasonable and probable cause which must exist requires:
(a) the defendant to have a subjective belief in the propriety of instituting proceedings; and
(b) the existence as a matter of objective fact of reasonable grounds for the institution of the proceedings.
68 In this case, the trial judge was satisfied that Robbins honestly believed that the charges should have been laid [681] - [682]:
Notwithstanding the complexity of the situation which had arisen, and the conflicting views which existed at the time, I am satisfied that Inspector Robbins did believe that the evidence disclosed a case against Noye, which meant that he should be charged and put on trial. In other words, I am satisfied that Robbins honestly formed the view that there was a proper case for prosecution.
This was not a case where the crucial facts were, or ever could have been, within the personal knowledge of the prosecutor. Inspector Robbins had to rely on the information which he had obtained or which was put before him. He could not rely on it by simply taking it at face value without having regard to factors which affected its cogency - obviously the credibility of LC; but what he was required to do was to decide whether, in his own view, and on an objective basis, the evidence warranted putting Noye on trial for the charges proposed and, in doing so, to act honestly for the purposes of bringing a wrongdoer to justice. That is what I am satisfied animated Inspector Robbins at the time he laid the charges and throughout the period when they were pending. I am quite satisfied that personally, he reached this decision after careful and anxious thought and with guidance of superiors and advisors. It was his honest opinion that charges should be laid, as they were. [emphasis added]
69 There were many factors which led Robbins to hold this honest belief. His Honour cited, as an example, the error that Noye made in concluding that there was no evidence upon which to base charges arising from the alleged theft of diamonds from Argyle. This error, his Honour said, 'was so egregious that it could only be explained by the grossest of inadequacies or misjudgments in the conduct of the inquiry, or by deliberately corrupt conduct'. The trial judge also referred to the evidence that Noye had met Roddan informally on very many occasions which, while not itself unlawful, was an unusual and compromising course for a police investigator. Noye's readiness to associate with Roddan was 'a very suspicious feature of his conduct and one, which even by the time of trial, Noye did not seem to recognise as being dubious': [669] - [670].
70 His Honour then turned to the question of whether there was, on an objective basis, reasonable grounds for laying the charges: [683] - [690]. The trial judge noted that, regardless of how the situation was viewed, the credit of LC was 'central and indispensible' to any hope of a successful prosecution. LC, however, was not a reliable witness. She had been part of a conspiracy to steal from Argyle, had previously made serious and baseless allegations of sexual misconduct against police officers, and had been promised leniency by Argyle if she gave evidence against Roddan. According to his Honour [690]:
[LC's] credibility was so severely compromised that I do not see how an objective independent observer, uninfluenced by the prejudiced flow of accusations coming from the Gwilliam task force, could ever have regarded her as a witness whose evidence would support charges against a long-serving police officer, who was not suggested to have received any money (despite her statements), who had always denied the allegations of corruption against him and who actively co-operated and participated in making statements about them to the investigating officers as soon as he learned that he had been accused of improper conduct. Accordingly, I find that, on an objective basis, there was not a reasonable or probable basis upon which to lay the charges, notwithstanding that Inspector Robbins and some others believed that there was. [emphasis added]
71 The trial judge then turned to consider whether Robbins was actuated by malice. He noted that malice can be established even if the prosecutor was not motivated by ill-will; it is sufficient to establish that the prosecution was motivated by some improper or collateral purpose.
72 In this case two bases of malice were alleged. First, Robbins had instituted the prosecution because of his desire to advance his career by demonstrating diligence in a high profile case. Secondly, he had instituted the prosecution in order to find a scapegoat and put to an end the embarrassment and humiliation of the WAPS.
73 The trial judge 'completely reject[ed]' the allegation that Robbins had prosecuted Noye so as to further his career. His Honour found there was no basis in the evidence to support this claim and it was inconsistent with Robbins' career history: [693] and [694].
74 The trial judge rejected the allegation that Robbins prosecuted Noye in order to provide a scapegoat to placate his superiors and ease the pressure applied by the public to the police over corruption: [695]. His Honour found that, while there was consternation about corruption in the police force and a desire to root it out, Robbins was aware of the seriousness of the situation and the consequences for any police officer wrongly accused of corruption: [699]. He said [700]:
I have concluded that the decision was, inevitably in the circumstances, influenced by the strength of the opinions of Gwilliam, Thoy and the Argyle security officers which were coming from the Lavender/Gwilliam task force. But that does not mean that the decision was improper or anything other than the product of an honest opinion by Robbins that the particular charges should be laid. Much later, when the shortcomings in the evidence came to be better appreciated, the DPP dropped the charges and no attempt has been made to revive them. However, I am satisfied that when they were made, Inspector Robbins was honestly of the opinion that they should be laid as part of his responsibility to put a suspected offender on trial for good cause. For this reason I also reject the plaintiff's submissions that the prosecutions were malicious in the sense of being instituted for an improper motive or to find a scapegoat for the more general failings of the Police Force.
75 His Honour mentioned briefly that in some circumstances a prosecution in the absence of probable cause is itself evidence of malice. In this case, however, the absence of probable cause was not itself evidence of a malicious intent. His Honour found that the contention that the dominant purpose of the prosecutor in initiating the charge was for a purpose other than the proper invocation of the criminal law because it was an illegitimate or oblique motive was dispelled by the evidence led in this case that Robbins honestly believed that there was a sufficient basis to charge Noye. His Honour continued [702]:
The fact that, in different circumstances, and with the benefit of advice less influenced by the strong opinions of the Gwilliam team, a reasonable person should have reached a different opinion, does not detract from the integrity of the personal motives and animation of Inspector Robbins.
76 The claim for malicious prosecution therefore failed.
77 The trial judge then turned to misfeasance in public office. In order to succeed in such a cause of action, a plaintiff must show that the defendant held public office, acted maliciously or knew the act was beyond his power and acted with intent to harm the plaintiff. He noted that the tort of misfeasance in public office involves the necessity to prove bad faith on the part of the office holder defendant: [263]. This can be accomplished by demonstrating that he or she acted in pursuit of an improper or collateral purpose and with the intention to harm the plaintiff. The same element may be satisfied by proof that the office holder was acting in the knowledge that the conduct was beyond power and that it was likely to harm the plaintiff; but there must be actual knowledge of want of power.
78 The trial judge held that the claim for misfeasance in public office must fail for essentially the same reason as the malicious prosecution case failed: Robbins honestly believed that there were good grounds to prosecute and was not actuated by any collateral purpose. His Honour said [733]:
[B]ecause I am satisfied that Inspector Robbins acted in the honest belief that the evidence available to him disclosed a case to establish the offences alleged against Noye which warranted him being charged and put on trial, there can be no basis for any conclusion that Inspector Robbins acted in bad faith or for an improper or collateral purpose and with intention to harm Noye. Nor is there any basis for a conclusion that in charging Noye, Robbins knowingly acted beyond power. Similarly, my finding that Inspector Robbins did not act maliciously in charging Noye also leads to the finding that he was not acting maliciously with the intention to harm the plaintiff or by doing so acted in excess of the proper exercise of his powers.
79 For those reasons, the misfeasance in public office claim failed.
80 Although not distinctly alleged in the pleadings, the trial judge considered whether there could be a claim for abuse of process as the issue had been agitated during the hearing: [268]. His Honour noted that, unlike the claim for malicious prosecution, there is no need for the plaintiff to prove the proceedings were terminated in his favour or that there was no reasonable and probable cause to institute proceedings. What the plaintiff must prove is that the proceedings were instituted for an improper purpose so as to secure a collateral advantage beyond that for which the law was designed: [270].
81 The trial judge dismissed this claim for much the same reason as the malicious prosecution and misfeasance in public office claims: the prosecution was not instituted for any improper, malicious or collateral purpose: [729]. His Honour not only found that Noye had failed to prove that the prosecution had been initiated for an improper or collateral purpose, but also made a positive finding that the prosecution had been commenced for a proper purpose: [729].
82 The trial judge turned finally to the claim for injurious falsehood. In order to establish this tort, a plaintiff must prove:
(a) the defendant published words about the plaintiff which were false;
(b) the words were published maliciously; and
(c) special damages flowed as a natural and direct result.
83 In this case the claim failed for two reasons. First, Robbins did not publish false statements about Noye. Secondly, and in any event, Robbins' actions were not motivated by malice: [735]. In explaining the non-publication finding, his Honour noted the distinction, which he regarded as significant and which had to be respected, between laying a charge which amounts to an allegation and publication of a statement alleging a fact: [276]. His Honour returned later to that point, saying [735]:
Inspector Robbins instituted criminal charges against Noye, and was responsible for the instigation of the internal police disciplinary proceedings against him. These were not publications of false statements made maliciously but, rather, were allegations of criminal offences and disciplinary offences, respectively. These were instituted before the appropriate court or statutory tribunal which had the jurisdiction to hear them and to determine whether or not any of the charges or complaints had been made out. Accordingly, these are not statements of the kind to which this tort applies and I am satisfied, in this case, that none of the charges or complaints was laid or instituted by Inspector Robbins maliciously. For this reason, the claims for damages against Inspector Robbins for injurious falsehood fail. [emphasis added]
84 The claim for injurious falsehood against LC, the second defendant in the matter, was successful.
85 The finding that Noye had not made good any of the causes of action alleged against Robbins meant that the trial judge was not obliged to assess damages. However, he went on to comment that, on a provisional assessment of the damages, he would have awarded damages had one or more of his claims been made out. His Honour identified three heads of damage for the tort of malicious prosecution: damage to the plaintiff's fame or reputation; damage to the plaintiff's person; and damage to the plaintiff's property.
86 His Honour then calculated the damages that would have been awarded under these three heads had the claim been successful: [755] - [780]. A significant item in the provisional assessment was loss of salary. Noye had argued that he might have been promoted to Inspector and perhaps beyond. The trial judge, however, ruled that any loss of salary should be calculated on the basis that he would probably not have been promoted beyond his current rank of Senior Sergeant because [614] - [618]:
(a) he had breached police regulations in the past, which would have counted against him;
(b) the criterion for promotion changed in the early 1990s from seniority to merit;
(c) other police officers gave evidence that Noye lacked the competencies to be promoted in a merit-based system;
(d) his conclusions about the Argyle investigation (that there was no theft by Roddan or anyone else) had caused acute embarrassment to the police; and
(e) his fraternisation with Roddan and general conduct during the Argyle investigation was indiscrete.
87 The trial judge noted that the question of damages was 'at large' but should be approached with a 'degree of moderation'. He assessed the level of damages that would have been awarded for malicious prosecution at $287,676 made up as follows [780]:
(a) $50,000 for injury to reputation;
(b) $50,000 for injury to person, health and restriction of liberty; and
(c) $187,676 for pecuniary and consequential loss.
88 The trial judge refused to award aggravated and (or) exemplary damages, saying [781]:
In such a case, aggravated damages and exemplary damages are both available and, through his counsel, the plaintiff made submissions that such additional damages ought to be awarded. However, this was only pressed faintly and I do not see any basis in this case for an award of exemplary damages. The consequences of the prosecutions for Noye have indeed been very profound and the effect of them upon his health and self-confidence are conspicuous. This would provide a basis for aggravated damages, but the allowance which I have made in the heads of damages for injury to person takes this into account and no additional allowance under this heading would therefore have been necessary.
89 For sake of completeness I should add that the trial judge assessed damages for the tort of injurious falsehood committed by LC at $272,676. The difference from the provisional assessment against Robbins lay in the award for injury to reputation ($35,000 rather than $50,000).
90 The grounds of appeal are lengthy and closely particularised. At the risk of oversimplifying things, I will summarise the grounds in an attempt to distil them to their essence.
91 The trial judge erred in fact in dismissing the claim for malicious prosecution on the basis that Robbins was not actuated by malice. The trial judge's rejection of the claim of malice was based on findings that Robbins had an honest belief that the evidence disclosed a case against Noye and that Robbins did not institute the prosecution for an improper purpose. However, the trial judge should have found that Robbins' prosecution of Noye was actuated by malice because:
(a) Robbins did not have an honest belief that the evidence disclosed a case against Noye;
(b) the sole or dominant purpose of Robbins was to relieve himself of various pressures being brought to bear on him and the WAPS; or
(c) Robbins demonstrated a reckless indifference to the truth or falsity of each of the charges laid.
92 The particulars in support of this ground refer to the fact that the case was heavily reliant on the evidence of LC and the absence of corroboration relating to material allegations; the appreciated lack of veracity of LC and BC as witnesses; and the known hostility of Thoy and Gwilliam towards Noye. It is also alleged that Robbins took an 'holistic' approach to the prosecution (that is, let witnesses say whatever they wanted to say and let the court decide) and paid inadequate attention to the views of another police officer that Noye's October 1992 report was 'comprehensive and accurate'. There are numerous particulars relating to the alleged embarrassment to the WAPS concerning the Argyle investigation, including the confession by BC of involvement in the theft of diamonds from Argyle, a climate of public concern about the integrity of police operations and mounting public expectation of an imminent prosecution of a supposedly corrupt police officer.
93 In the alternative to ground 1, the trial judge erred in law in that he did not make a separate finding in relation to the charge of publishing the secret AFP report. Had he addressed the charge separately, he should have concluded that the prosecution of that charge was actuated by malice for the same reasons as are noted in items (a), (b) and (c) in relation to ground 1.
94 The particulars to this ground concentrate, in the main, on the fact that the main prosecution witness was Gwilliam, a person known to be hostile to Noye and lacking in objectivity.
95 Again in the alternative to ground 1, the trial judge erred in law in that he did not make a separate finding in relation to the charges of insurance fraud. Had he addressed these charges separately, he should have concluded that the prosecution of those charges was actuated by malice. In this instance the ground does not refer to the alleged improper purpose.
96 The particulars relate to the centrality of the evidence of LC and her lack of veracity. They also refer to the failure of Robbins to interview Noye about the matters the subject of those charges.
97 The trial judge erred in fact and law in dismissing Noye's claim of misfeasance in public office. The gravamen of the complaint of error of law is the trial judge's findings that the conclusions expressed in Noye's October 1992 report were not unreasonable, untenable or inconsistent with the evidence and information available to him at the time: [113]. Further, at the time, there was no evidence available to justify the laying of charges against Roddan for the theft of diamonds, at least not the institution of a prosecution which could be regarded as having any reasonable prospect of success: [141].
98 This ground also calls in aid the more general contention that there was no reasonable and probable cause for Robbins to charge Noye in the first place and that the trial judge ought to have concluded that the laying (and continuation) of the charges against the appellant amounted to a misuse, or wrongful or unreasonable use, or excess of the prosecutorial power vested within Robbins.
99 The trial judge erred in law in not awarding aggravated and exemplary damages. Had he made findings of malice, he should have awarded Noye aggravated and exemplary damages.
100 The trial judge's provisional award of damages for injury to reputation, person, health and restriction of liberty, and pecuniary loss was manifestly inadequate such as to amount to an error of law, and was also based on an erroneous view (or inadequate analysis) of the evidence. The particulars in support of this ground include:
(a) the evidence that Noye would not have been promoted was against the weight of the evidence and in particular having regard to the evidence of Ayton;
(b) Noye's investigation was under-resourced and hampered by Gwilliam;
(c) the trial judge failed to take into account his finding that Noye's views expressed in the October 1992 report were not unreasonable, untenable or inconsistent with the evidence and information available to him at the time; and
(d) the quantum awarded was so low that error should be inferred.
101 In his notice of contention, Robbins argues that the decision ought to be affirmed on grounds other than those relied on by the trial judge.
102 There are two limbs to the notice of contention. First, the trial judge found that, objectively speaking, Robbins had no reasonable and probable cause to prosecute Noye (even though he genuinely believed that such cause existed). This, Robbins argues, was an error because it is based on a view that a jury was unlikely to accept the evidence of LC. However, the prosecutions were based on direct and circumstantial evidence [321] and, on the whole of the evidence, there should have been a finding that Noye had failed to prove an absence (objectively) of reasonable and probable cause.
103 Secondly, the trial judge erred in holding that Robbins was the 'prosecutor' when he should have found that Robbins ceased to be the relevant prosecutor from the time (12 November 1993) that the DPP served notice that their office would conduct the prosecutions.
104 The evidence (oral and documentary) at trial was multitudinous. It covered a vast range of matters dealing with the Argyle diamond theft, the various police investigations (both State and Federal), the prosecutions of LC, BC and Roddan and infighting within the WAPS. It is instructive, however, to stand back from the minutiae and make some general observations and to identify the critical issues on which the fate of this appeal will turn.
105 The story, as related by the trial judge (much of which is either common ground or unchallenged), reflects badly on the WAPS and to some extent on the DPP. The decision to curtail the initial Thoy investigation was questionable. Noye's investigations were hampered by inadequate resourcing and the disruptive influence of Gwilliam. His conclusion (expressed categorically) that there would never be evidence capable of establishing that the diamonds were stolen from Argyle by Roddan or anyone else was later proved to be wrong. On one view of it, investigators stumbled on the 'truth' only because LC got into a drunken brawl with Roddan, was arrested and 'spilled the beans' and then BC (following reflection after an initial contact by Robbins) confessed. The reaction of the WAPS was to establish the Lavender investigation. Given all that had transpired the decision to appoint Gwilliam to that inquiry was, putting it mildly, surprising. Noye was charged in November 1993. On four occasions over the ensuing years the charges were either amended or supplemented. In October 1998 (almost five years later) the charges were dropped, but with a backhanded slap suggesting (at least according to the trial judge) that Noye may nonetheless have been guilty.
106 Be all that as it may, it is necessary to focus on the issues that arose at trial and those that are under attack in the appeal. That requires an identification of the issues that remain alive and those that have passed into history. There are several background matters that are important in the resolution of the question whether Noye has suffered a compensable wrong.
107 First, Noye has always maintained (when the charges against him were pending and during the trial of this action) that he was completely innocent of all the charges laid against him. He denied that he had corruptly recommended that no charges could or should be laid against Roddan or BC or that he had unlawfully disclosed confidential materials or that he had been a party to any insurance or other fraud arising from LC's insurance claims. At trial neither Robbins nor LC adduced evidence in an attempt to prove that Noye was in fact guilty of any of the charges ever laid against him. The trial judge found that 'there is no reason to conclude that Noye committed any of the offences of which he had been charged'. I do not understand that finding to be challenged on appeal.
108 An observer would be forgiven for thinking that Noye had been dealt with harshly and perhaps even unfairly. He was wrongly prosecuted, using the word 'wrongly' in a broad colloquial sense. The trial judge was satisfied that Noye has suffered, both physically and financially, as a result of what happened. But consideration cannot be limited to whether Noye was dealt with harshly or unfairly and whether he has suffered because of it. That is part of the story but it is not a complete statement of what this case is about. The central question in the action (and this appeal) was and is whether Robbins' conduct of the investigations into Noye's activities and the laying of charges by Robbins against Noye was so flawed as to be actionable.
109 The second matter relates to the trial judge's finding that, to a great extent, the charges depended on the credibility of LC. His Honour made strong findings to the effect that LC's credibility was suspect. He said he was left with the clear impression that LC was a very unreliable witness and that her unreliability ranged from mistaken recollection, to reconstruction and invention, and to actual falsehoods. She harboured deep prejudice against Noye, as well as harbouring a long-standing dislike and suspicion of police officers generally. His Honour concluded that LC was a person of very low credit and said [659]:
I have no doubt that by any experienced police officer, investigator, prosecutor or other lawyer, she would quickly be recognised as a person in whom a court or a jury would not be disposed to place any significant degree of trust.
110 In the first ground of the notice of contention Robbins challenges the trial judge's findings about LC's credibility, although not (as I apprehend it) to the extent that he contends the trial judge should have found LC to be a witness of veracity. Rather, the alleged error lies in the failure of the trial judge to look at all of the evidence arrayed against Noye; not simply at LC's evidence in isolation. Further, he should have addressed the question whether a jury would or might reasonably have found LC to be a credible witness rather that what he (the trial judge) thought about her.
111 Thirdly, the trial judge made strong credibility findings in favour of Robbins. He pronounced himself to have been impressed by Robbins as a witness, even though he came to the view that Robbins' decision to prosecute was erroneous. He described what Robbins had done as 'conscientious errors of judgment'.
112 Noye (unsuccessfully) advanced claims for malicious prosecution, misfeasance in public office and injurious falsehood. The trial judge also examined (and rejected) a claim for abuse of process. I do not understand the grounds of appeal to challenge the findings and conclusions in relation to injurious falsehood and abuse of process. The grounds, and the written submissions in support, concentrate on the torts of malicious prosecution and misfeasance in public office. I need say no more about either injurious falsehood or abuse of process. To a large extent, the factual basis for the separate causes of action overlap.
113 The first element of the tort of malicious prosecution is that the defendant instituted the proceedings, or was instrumental in their institution and (or) continuation. The trial judge found that Robbins was, relevantly, a prosecutor in relation to both the criminal charges and the police internal disciplinary charges. However, he also found that the disciplinary charges could not, as a matter of law, found an action in malicious prosecution. I do not understand Noye to challenge that conclusion. It follows that the focus of attention is on the criminal charges contained in the complaints and the indictments. In ground 2 of his notice of contention Robbins challenges the finding that he was the relevant prosecutor, at least after 12 November 1993 when the DPP assumed responsibility for the prosecutions.
114 Depending on the answer to other questions, it may be necessary to determine in this appeal whether Robbins relevantly instituted the prosecution of the criminal charges, or was instrumental in their institution and (or) continuation.
115 The second element is that the proceedings were terminated in the plaintiff's favour so far as such an outcome was possible. The trial judge found that the entry of the nolle prosequi taken with other evidence satisfied this element and thus found in Noye's favour on this question. I do not understand Robbins to challenge this conclusion and it can be put to one side.
116 The third element is that the defendant's conduct was without reasonable and probable cause. This involves the existence, as a matter of objective fact, of reasonable grounds for the institution of the proceedings. However, it also has a subjective element: an honest belief in the propriety of instituting proceedings. The trial judge was satisfied that Robbins honestly formed the view that there was a proper case for prosecution. However, he also found that, on an objective basis, there was no reasonable or probable basis upon which to lay the charges, notwithstanding that Robbins (and others) believed that there was.
117 This is at the very heart of Noye's challenge to the trial judge's ultimate conclusion rejecting his causes of action. He argues that, given the strong findings in his favour that, objectively speaking, there was no reasonable and probable cause, the finding that Robbins honestly believed there was a case for the charges to be laid is illogical and unsustainable. The question to be asked is: given the absence of reasonable and probable cause, what is the explanation for Robbins' decision to prosecute? Noye says the trial judge should have answered that question by finding that the explanation lay not in an honest belief but, rather, in the harbouring and putting into effect of an illegitimate and improper motive; namely, a desire to find a scapegoat so as to relieve pressure on himself and the WAPS.
118 A significant factor in the trial judge's conclusion that, objectively speaking, there was no reasonable and probable cause was the centrality of LC's evidence and the unlikelihood that a jury would accept her veracity.
119 Noye disputes the finding that Robbins held an honest belief that the institution of proceedings was justified. In the first ground of contention Robbins says the trial judge got it wrong when he concluded there was no objective justification for launching the prosecutions.
120 The finding in Robbins' favour in relation to the subjective component was material to the trial judge's conclusion that Robbins acted without malice (the fourth element). Another aspect of the malice finding was the rejection of Noye's contentions that Robbins had acted for improper purposes; namely, that he had acted in his own interests (to secure promotion) and to find a scapegoat so as to relieve the pressure on, and put an end to the embarrassment and humiliation of, the WAPS. There are various aspects underlying the allegations that were dealt with in these findings. I have mentioned some of them in [67] ‑ [70].
121 I think it is fair to say that the finding against Noye on the question of malice is at the heart of his appeal. As counsel for Noye said at the hearing of the appeal, it is not just the wicked Iago figures that are to be held malicious for the purpose of the tort; it is also those who prosecute for purposes which are oblique or improper. I do not understand Noye to have argued (at least on appeal) that malice arose from some hatred, ill will or malevolence on the part of Robbins. Rather the basis of the submission was that to prosecute in order to relieve pressure, as ground of appeals 2.2 and 4.2 allege, is improper. So, too, is acting with reckless indifference to the truth or falsity of the charges that were laid.
122 I do not understand Noye to challenge the trial judge's conclusion that Robbins was not motivated by prospects of career advancement, and that can be put to one side. However, the question of oblique or improper motive (the relief of pressure on himself and the WAPS) is a live issue. It is a significant issue because, on Noye's case, it explains why Robbins acted as he did and counters the finding that he (Robbins) held an honest belief that the prosecutions were warranted. As counsel for Noye explained this aspect of the appeal, the finding that Robbins did what he did because he honestly believed it is not an answer, but simply rephrases the question. The explanation lies in the fact that Robbins lowered his standards in the highly charged circumstances created by the pressure.
123 The subjective and objective elements of 'reasonable and probable cause' and the issue of malice are intimately connected and it is not easy to place the relevant factual matrix into three neat compartments. The determination of the questions whether Robbins held an honest belief that the prosecutions had a reasonable basis, whether there was, objectively speaking, reasonable and probable cause for laying the charges and whether Robbins' prosecution of Noye was actuated by malice will emerge from a consideration of a whole range of matters, most of which are connected.
124 Neither party alleged that the trial judge had misapprehended the relevant legal principles relating to the several torts in any material way. While there are areas in which individual findings of fact are challenged, as a general statement the gravamen of the appeal lies against the evaluation process, that is in the conclusions that arise from findings of fact that were (or on the case of one or other party, should have been) made. I can give an example. On Noye's case, his Honour found that there was pressure on Robbins and Noye contends that on those findings there was a compelling case of improper purpose. However, the error lies in his Honour's evaluation of the evidence relating to Robbins' purpose and the conclusion ought to be corrected.
125 The broad issues that will have to be addressed in order to decide this appeal include the following matters.
(a) the material that Robbins regarded as the most incriminating features of Noye's conduct;
(b) his assessment of LC's evidence and the other evidence relevant to the prosecutions; and
(c) the relationship between Robbins and the DPP.
(a) did he hold the belief referred to in 1 above;
(b) did he succumb to pressure to find a scapegoat and thus act for an oblique or improper purpose; or
(c) did the conduct of his inquiry and the decision to institute and continue with the charges demonstrate reckless indifference to the truth or falsity of the allegations on which the charges were based?
126 I have not included in this list the arguments concerning the provisional award of damages because, at this stage, I am concerned with the issue of liability. I will, however, return to the question of damages later in these reasons. Because the issues that I have identified are intertwined and there is an overlap in the factual matrix it will be difficult to approach the analysis strictly by reference to the issues. Counsel for Noye approached the appeal in three parts and it will be convenient for me to follow a similar path. Counsel painted these signposts on the path:
127 It is apparent from the way the appeal was argued that the 'pressure' question and the existence of an oblique and improper purpose or motive is a significant (although not the only) aspect of Noye's challenge to the conclusions arrived at by the trial judge.
128 I should interpolate here that during the course of the trial and on appeal the terminology slipped from time to time between 'purpose' and 'motive'. While purpose and motive are not the same thing (see Hyams v DPP [1974] UKHL 2; [1975] AC 55, 73), I do not think there is any significant difference in the context in which they arise in this case.
129 In mounting this challenge counsel made it clear that they did not complain about the depth of the examination entered into by the trial judge or about the material available to Robbins. Rather, the error lay in the adequacy of the evaluation of that material. Counsel pointed to many findings made by the trial judge to the effect that there was pressure on Robbins but then made the ultimate finding that Robbins did not succumb to the pressure. It is this ultimate finding about which Noye now complains. Further, according to counsel, in various parts of the reasons the trial judge expressed puzzlement that once Noye had been charged nothing much happened to investigate corruption by other police officers, including some in the upper echelons of the WAPS. His Honour should have put two and two together and concluded that the absence of further investigations was consistent with Robbins succumbing to pressure by instituting a prosecution of (one) officer for allegedly corrupt conduct.
130 It is important to tie these allegations back to the grounds of appeal. When pressed on this issue counsel for Noye referred to par 2.2 of the grounds of appeal, which contends that the trial judge should have found that Robbins was actuated by malice because his sole or dominant purpose was to relieve himself of various pressures brought to bear on him and the WAPS. The particulars to which counsel drew attention to support this ground are:
2.2.7. The embarrassment to the [WAPS] when, in August 1993, [BC] confessed to stealing diamonds from Argyle and then selling those diamonds to [Roddan].
2.2.13. Senior officers of [Argyle] ... were running a campaign aimed at encouraging [Robbins] to promptly charge [Noye].
2.2.14. There was a public climate of concern about the integrity of police operations, particularly in relation to the Argyle Diamond matter.
2.2.15. There was a mounting public expectation of an imminent prosecution of a supposedly corrupt police officer over the Argyle Diamond matter.
2.2.17. Evidence from [Ayton] about a desire for a result which brought about a successful conclusion, as much as possible on the evidence, which minimised the damage to the [WAPS].
131 Ground 2 is tied to ground 1, which attacks the findings and conclusion 'in relation to all charges laid against [Noye] by [Robbins]'. Ground 4.2 is in the same terms as ground 2.2 but ground 4 is directed specifically at the charges arising from the publication of the D'Anna report. There are aspects of ground 4 over and above the allegation of improper purpose but I have not been able to identify any significant matters relevant to ground 4.2 over and above the considerations raised by ground 2.2.
132 The trial judge had examined the authorities before commenting that charging an accused with an offence due to succumbing to pressure from bureaucratic superiors to lay a charge, may, in some cases, support a finding of malice: [254]. The trial judge also commented that in the circumstances of this case Noye would succeed if he could establish that, by charging him with criminal offences, Robbins was motivated by a desire to demonstrate that the WAPS was taking steps to deal with public concern arising from criticism of its conduct over the investigation of the Argyle diamond thefts, so as to counter suggestions that the Force was soft on police corruption. The cause would also be established if Noye could prove that Robbins initiated a prosecution in which he had no belief so as to make a scapegoat out of Noye, and, thereby, to avoid or to reduce criticism or embarrassment of the WAPS arising out of the attention which had been given to the Argyle diamond affair and the associated allegations of police corruption: [272].
133 I accept the proposition put on behalf of Noye that the trial judge did make findings that there was pressure. Without intending this to be an exhaustive list, the following are passages from the reasons for decision in which the finding that there was pressure was made, or from which such a finding could be inferred.
134 The evidence in support of ground of appeal particular 2.2.17 is, I think, an exchange occurring during the cross-examination of Ayton:
Indeed, can I ask you this: during the course of your time there you became firmly of the view that there needed at least to be some protection of your department in the public's eye from criticism. Correct, Mr Ayton?‑‑‑I wanted a result that brought about a successful conclusion as much as possible on the evidence but which minimised the damage to the Police Department. We'd had enough beltings in the public as it was and I wanted to minimise that (ts 1844).
135 There is some additional evidence from Ayton (ts 1875 and 1908) in which he was asked to explain an entry he had made in his notes: 'Salvage face and do justice to the information and inquiry'. He said he wanted to get the inquiry done as well as they could. He wanted to save as much face for the WAPS as he could so 'we didn't get blasted all over the media by whoever was leaking [the] inquiry'. He was trying to do whatever was needed to be done to protect the WAPS's reputation. This exchange then occurred:
You needed to have a particular target in order to salvage face. Correct?---No. We needed to do the inquiry properly.
Was Mr Noye not a target in order to salvage the face of your department?---No.
Are you sure about that?---Absolutely. We needed to do the inquiry properly. Both inquiries properly (ts 1875).
...
There have been some questions put to you; the term 'scapegoat' and 'nailed' have been used. Can you tell me whether there was any influence exerted on Inspector Robbins as he then was to produce any outcome to his inquiry?---No, simply to write one (ts 1908).
136 Of course it is one thing to say that a highly charged or hothouse atmosphere existed. It is another thing to say that a person succumbed to the pressure brought to bear on him (or her) and acted wrongfully so as to relieve the pressure. That is a critical question in this appeal: did Robbins succumb to the pressure which the trial judge found to have existed?
137 In this respect, Noye can gain no comfort from the evidence of Ayton (referred to above in relation to particular 2.2.17). While that material does go to the existence of pressure there was no evidence that Ayton conveyed the sentiment to Robbins in those terms. Even if he did, it was couched in terms of reaching a conclusion 'on the evidence' and that there was a need to attend to the inquiry properly. In any event, Ayton denied that influence had been exerted on Robbins to 'nail' someone as a 'scapegoat'.
138 After he had been examined by both counsel, the trial judge put many questions to Robbins. One of the areas canvassed by the trial judge was the question of pressure. If I can digress for a moment, counsel for Robbins contends that the question of oblique or improper motive arising from pressure was never pleaded and it only arose at trial as a result of these questions. This explains the application to strike out the relevant paragraphs from the grounds of appeal. I will come back to that application in the conclusion to these reasons. Meanwhile it is necessary to look at the substance of Robbins' evidence represented, as it is, in the exchange with the trial judge.
139 The trial judge referred Robbins to LC's confession in January 1993 and asked whether that was 'in one sense ... a potential embarrassment to the police'. Robbins answered: 'Yes, very much so'. The exchange continued:
[B]ecause here's an inquiry which has been running for four years; it has been shut down twice; there's been allegations of corruption left, right and centre; the official position has been that there's no evidence to charge anyone; and here the case is broken wide open and the principal suspects are plainly guilty. "What are we going to do now"?---Very much so, your Honour.
There was a real dilemma?---But not a dilemma on my part. I knew where I had to take that. I was very mindful of the fact that, yes, it was going to cause embarrassment to especially some of the hierarchy of the CIB because they were supporting previous inquiry or previous suggestions and strongly suggesting to Argyle management and security that there is no case there. Naturally, they were going to be embarrassed by the new revelation. I would suggest that certainly in the latter part of 92 it was convenient for that hypothesis to continue amongst the hierarchy of the organisation.
Well, superintendent, don't take me the wrong way but the situation appears, on one view, that at that point the police badly needed a scalp and who better to scalp than Mr Noye?---I can see the concept there but that was definitely not my approach to the matter. In fact, I would suggest, your Honour, that in the end of 1992 they weren't looking for a scalp, they were looking for a closure on the matter.
Yes, but when it broke?---When it broke in 93? I don't know that I was - I can tell you for sure that I was never ever put under any pressure to come up with an arrest or a result on this other than what my inquiries diligently discovered. We take these matters seriously and objectively and right at the outset I was grateful of the services of Mr Tannin arriving when he did because one thing that we always did in serious internal affairs matters was give full visibility of what we were doing to the DPP. We were very mindful of the fact that, yes, there was an allegation that any arrest - in fact, in any major crime, not simply in this Argyle one but in major crime, Claremont serial killer, anything - can be very convenient. There's always two ways of completing an inquiry. One is an arrest and the other one is what is actually harder to do, and that is describe to people why you're not making an arrest. So I'm very mindful of that. I was prepared at all stages to proceed with this objectively. I made sure I did. I also made sure that everything I did was totally visible to senior officers.
But it does seem that there was a pocket of officers who, presumably conscientiously but nevertheless sort of bending the rules somewhat, were disseminating a view to the press and the public that this was all due to corruption and Noye was just one of a number concerned. Is that a fair observation?---That is an observation of mine which is fair. That is what Thoy and Gwilliam believed. No one else did, just those two. In fact, if you look at the flow of information right through to The Sunday Times from various circles, it could always be traced back to their own hypotheses, no-one else's.
And in this kind of climate when the magnifying glass is put over Mr Noye's conduct, all these meetings with Mr Roddan looked very bad?‑‑‑Indeed they did (ts 1801 ‑ 1802).
140 The relevant cross-examination of Robbins (ts 1676 ‑ 1679) seems to have focussed on his prospects of promotion rather than pressure in the sense that is now being agitated. The only reference to pressure that I could find was at ts 1678 where Robbins agreed that in 1992 there had been a degree of pressure from Argyle that the investigation be done properly. When asked whether any political pressure had been placed on him 'to see this through to its conclusion', he answered:
No, there wasn't and in relation to the concerns of Argyle I mean, I had experienced that level from all sorts of corporations when I was dealing with corporate fraud matters. You just have to be patient in these matters and notwithstanding that they wish to have a quick result due process has to be observed (ts 1678).
141 It was open to the trial judge to have accepted these exchanges as evidence that there was potential embarrassment; if it created a dilemma, it was not a dilemma that affected Robbins; he was not looking for a scalp; he considered the matters seriously and objectively; he was never put under pressure to come up with an arrest or a result on this investigation other than what his inquiries diligently discovered; and he was used to pressure (albeit from corporations rather than his superiors). When the entire exchange is read I think his reference to 'never [having been] put under any pressure' is to his own state of mind (his reaction to pressure) and not to an absence of pressure from external sources in a situation of potential embarrassment to the WAPS.
142 The trial judge made strong credibility findings in Robbins' favour. He said:
My impression of [Robbins], when giving evidence, was favourable: [469].
From my assessment of [Robbins] during a lengthy period when giving evidence and being cross-examined, I formed the impression that he was a very honest, reliable and dedicated officer, who clearly possessed a broad perspective of the difficulties of the situation and a realisation of the shortcomings of the procedures which the police had followed: [470].
One of the most impressive features of [Robbins'] evidence was the extent to which he unflinchingly acknowledged the serious problems in the service, which he had been trying to address. He was quite frank in this respect and, without indulging in gratuitous or unnecessary criticism, described, in my view honestly, the problems which he experienced with Gwilliam and Thoy and with the Argyle security staff: [471].
143 The trial judge made positive finding that Robbins did not act for an improper purpose. He did so in at least two places. In [469] and following, his Honour related his assessment of Robbins' evidence. He commenced by saying: 'My impression of Superintendent Robbins, when giving evidence, was favourable'. As part of the explanation for that conclusion, and not for the first time, the trial judge traced the history of the saga, commented on what he saw as the weakness of the case against Noye and, with the benefit of hindsight, tried to identify what had gone wrong. He asked the question whether the evidence, stripped down to its essential detail and sources, demonstrated a case for corrupt activity by Noye, as distinct from a case of serious, but nevertheless innocent, misjudgment. It caused his Honour to comment that the inadequacy of the first two phases of the investigation was so gross that it was both more palatable and credible for the authorities to conclude that there must have been corruption involved. But, he continued, if that were the case with Noye, why not with the Thoy inquiry (or probably, more correctly, the termination of the Thoy inquiry)? He then said [479]:
How it could have been thought that such an important case could succeed on such a weak footing is now, clearly, a matter of concern. However, such an impression is inevitably formed with the benefit of hindsight, where the stresses, anxieties and sense of necessity to take fearless action to correct a damaging perception of corruption, which perhaps gave greater credibility to the case than it really deserved, are absent. That is one of the pernicious consequences of suspected corruption, lack of trust, mutual suspicion and low morale within any organisation. However, those are features which, unfortunately, existed at the time and which caused damage, including conscientious errors of judgment. [emphasis added]
144 The reference to 'conscientious errors of judgment' relates to the decision taken by Robbins. It is a strong pointer towards the genuineness and honesty of the actions which Robbins took. It has to be seen in the context of the favourable impression Robbins made on the trial judge as a witness of veracity.
145 The second area in which a finding was made appears in the long section dealing with the criminal charges. His Honour said, at the commencement of [695]:
On the question whether or not there was malice in the sense of the pursuit of an improper motive of making Noye a scapegoat for the general deficiencies of the [WAPS], I am satisfied that [Robbins] was not actuated by any such motive.
146 His Honour went on to acknowledge the existence of 'deep concern within the higher levels' of the WAPS that there may have been corruption and the embarrassment caused by the termination of the Thoy inquiry, which embarrassment was doubled by Noye's conclusions and recommendations and which provided grounds for the chorus of opinion that was convinced that corruption existed in relation to the inquiry to become more strident. His Honour said it was only natural for higher command of the WAPS to feel that there was a necessity to rehabilitate the reputation of the Force. He went on to say [696] - [697]:
Accordingly, if a case of corruption existed, it would be necessary for the [WAPF] to act firmly and decisively, even if it meant that one or more of its own members would be shown up as being corrupt. I do not see anything improper in any of these reactions to the events as they unfolded. It was an occasion when deep suspicions were aroused and where the reputation of the [WAPS] was at stake. Fearless, independent and firm action needed to be taken if a case of wrongdoing was revealed.
By contrast, it would be seriously improper for any police investigator, in such a situation, to deliberately and knowingly, falsely accuse some other officer in order to deflect attention from other problems in the [WAPF] and thereby create a sacrificial victim for no better reason than to salvage a battered reputation of the [WAPS].
147 Counsel for Noye was critical of the trial judge's approach. He submitted that once the findings of the existence of pressure had been made they should have led inexorably (my word, not counsel's) to a conclusion that Robbins was actuated by an improper purpose.
148 In my view, this is a case in which the appellate court should respect the advantages that the trial judge had in seeing and hearing the witnesses. The trial judge not only saw and heard the witnesses, he did so in a trial that lasted 27 hearing days, produced a transcript of more than 2500 pages and involved the admission into evidence of 175 documentary exhibits (probably extending to thousands of pages). At least in relation to the question of improper motive, counsel for Noye did not point to areas in which the trial judge had misunderstood or overlooked material aspects of the evidence. The findings in relation to purpose (and, I might as well add at this stage, the honesty of the belief held by Robbins) were based on the trial judge's assessment of Robbins' credibility. Accordingly, this is an instance where it would be difficult for the appellate court, by reading the transcript and the documents, to gain a 'feeling' of the case which the trial judge would undoubtedly have gained: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. The real import of this aspect of the appeal is that in evaluating the evidence (especially in light of the findings about the existence of pressure) the trial judge simply got it wrong.
149 The importance of the 'feel' for a case is sometimes overlooked. An observer examining the authorities on appellate approach to discerning error where credibility findings have been made might be excused for thinking that appellate courts work backwards - settle on a conclusion and then either embrace or question the advantage that the trial judge had according to the conclusion. Of course, that is not what happens. The circumstances of each case differ. Nonetheless, it seems to me to be wrong to confine the advantage a trial judge has to questions of demeanour. The 'feel' for a case is much broader than that. A trial judge can assess the testimony of a witness in the context of the whole of the evidence. The nuances of the hearing may not be as apparent in the more clinical atmosphere of an appeal as they are to those who sit, day in and day out, in a (relatively) long hearing and who can appreciate why things happened (or did not happen) in a particular way.
150 In my view, there is no warrant to conclude that the trial judge misused the advantages that I have mentioned. Nor do I think it can be said that the ultimate finding is glaringly improbable, even given the strength of the earlier findings about the existence of pressure. Robbins testified that he was not put under pressure and the trial judge believed him. But he did more than that. In the passages I have set out from [695] ‑ [697] his Honour explained how that conclusion gelled with the circumstances; that is, with what counsel for Noye described as the 'hothouse atmosphere' and with the considerations surrounding the need to placate public criticism and to restore the reputation of the WAPS. In my view (and contrary to the position urged on the court by counsel for Noye), it was open to the trial judge to find that pressure brought to bear on Robbins did not cause him to lower his standards. Nor is it the only logical explanation for what the trial judge found to be errors of judgment by Robbins.
151 For sake of completeness I should add that in par 2.2.18 of the particulars there is a reference to Robbins being, himself, accused of corruption as a result of his failure to prosecute Noye. Reading the written submissions I think this is a reference to an accusation by LC after Robbins returned from speaking to BC in Victoria (April 1993) when LC suggested (in colourful language) that Robbins was weak and should arrest Roddan and all corrupt police officers (perhaps including Noye). Robbins was cross‑examined about this and said he could not remember the words used. He also denied having offered LC immunity from prosecution in relation to the diamond conspiracy (ts 1736 ‑ 1738). There was no evidence, at least none that the trial judge accepted, to the contrary. If, and to the extent that Noye seeks to argue that in charging Noye, Robbins was motivated by a desire to relieve the pressure being placed on him by LC, there is no sufficient evidentiary base for it.
152 Unfortunately, this does not dispose of the entire question of malice or even of the issue of improper purpose because counsel for Noye argued that the existence of pressure and the egregious absence of reasonable and probable cause together should have led to a finding of improper purpose (and hence of malice). However, as a discrete challenge, neither of grounds 2.2 and 4.2 has been made out.
153 The second area of attack mounted by counsel for Noye in the appeal lies in the assessment of the materials available to Robbins and on which he based the decision to prosecute. This brings into play several of the grounds of appeal and particulars. In par 2.1 of the grounds of appeal Noye alleges that, contrary to the trial judge's finding, Robbins did not have an honest belief that the evidence disclosed a case against Noye for which he should be charged and tried. The relevant particulars are:
(a) Robbins knew that the case was heavily reliant on the evidence of LC, he had serious reservations about LC's veracity in general and he knew she was hostile to Noye (2.2.1, 2.2.2 and 2.2.3);
(b) BC was another prosecution witness about whose general veracity Robbins had reservation (2.2.4);
(c) Robbins knew both LC and BC were facing serious criminal charges and had been offered lenience for information against Noye (and others) (2.2.5);
(d) in relation to the charges of publishing documents, Gwilliam was a witness known to be hostile to Noye and lacking in objectivity (2.2.6);
(e) viewed objectively, Robbins had no reasonable and probable cause to prosecute Noye (2.2.8).
154 There are similar complaints in pars 4.1 and 6.1 of the grounds of appeal. I do not think it is necessary to recite the particulars that relate to those paragraphs.
155 On 20 February 1992 Noye submitted his initial report to Zanetti. Based on this report the trial judge found that (to that point) Noye had undertaken an assiduous and objective appraisal of the state of affairs. He (Noye) was satisfied that there was a serious and systematic campaign of stealing from Argyle that had probably been perpetrated and that BC and Roddan were the principal suspects. He had concluded that further investigations would be likely to lead to evidence which would implicate them directly. The tenor of the report suggested that Noye had a degree of sympathy for Thoy's obsessions about being blocked while conducting his inquiry. The report also revealed what appeared to have been a satisfactory working relationship with Thoy and Gwilliam and a respect for the work which those two officers had performed. It was on the basis of this report that Noye was instructed to reopen the Argyle diamond theft investigation.
156 In September 1992 Noye presented to Ayton a draft of his final report. The final report was discussed with Ayton and Round and formally submitted on 27 October 1992. Although I have already referred to them, I need to repeat the conclusions expressed in the final report. Noye concluded that there was insufficient evidence to sustain charges against Roddan, insufficient evidence to connect any person with the theft of diamonds from Argyle and insufficient evidence to substantiate the allegation that diamonds were being stolen from Argyle. However, Noye went further and added this:
I can categorically state that I am confident that at no future time will any evidence be disclosed that will probably show that:
1. the diamonds claimed by [Roddan] were illicitly removed from the control of the complainant, [Argyle] by any person; and
2. there is any valid evidence of the existence of an organised consortium of mine staff and, or others, engaged in the theft of diamonds from the Argyle mine site or alluvial areas between 1988 and 1990.
157 The trial judge found [113] that it could not be said that the views expressed and recorded by Noye in the report were unreasonable, untenable, or inconsistent with the evidence and information available to him at that time. It is not clear whether that finding is directed at the conclusion that there was insufficient evidence to sustain charges or whether it also covers the 'categorical' view that nothing would be found in the future. However, I think that (whatever its reach) the trial judge's finding is directed towards the objective aspect of reasonable and probable cause rather than to the question whether Robbins held an honest belief.
158 It is clear that Robbins was significantly influenced by Noye's change of position during 1992. In his evidence in chief he said that when he examined the Noye report he formed a view there were irregularities in the report which were consistent with LC's allegation that Noye had been bribed by Roddan to write off the report. He compared the preliminary report and the final report. In the preliminary report Noye had been very positive about the prospects of a prosecution. However, the final report categorically ruled out a prosecution. Robbins testified that he did not see proper justification for that change of view. There were a number of unanswered questions raised by the final report including why Noye did not interview certain persons. There were inconsistencies within the final report and between the preliminary report and the final report (ts 1447 ‑ 1448).
159 Under cross‑examination Robbins testified that somewhere between the primary assessment by Noye (which supported Thoy) and the final report (which recommended that the investigation be written off), Noye had 'tripped [up]'. When asked to explain he said:
My current understanding and my current view is that somewhere between the time that [Noye] was given this inquiry in the beginning of 1992 and at the time he wrote it off, and I'm not exactly sure when or how, he made a conscious decision to corruptly write that file off. That is what I was referring to. I do not know when he made that decision or what he based it on, but that is what I was referring to there. ... The fact is we know that between a date beginning of 1992 and a date near the end of 1992 [Noye] made some decisions which we allege were corrupt (ts 1617 ‑ 1618).
160 When asked to identify the reasonable and probable cause giving rise to that supposition, Robbins referred to '[t]he body of evidence that was collected throughout 1993' and said that his view was formed over about a nine month period. When asked about the basis that gave rise to his view this exchange occurred:
Perhaps you could tell me and perhaps tell his Honour what it is that gives rise to this reasonable probable cause that you think Mr Noye at some stage tripped up and when it was please?---As I said, I don't know when it was. It was some time over a nine-month period. As far as my personal interpretation of the evidence I'll be very clear that sometimes I would see a statement or a piece of evidence that was read by myself, officers of the DPP. They understood certain things in it that I perhaps wasn't able to and I was guided by
I'm asking not about the DPP, I'm asking about you, Mr Robbins, please?‑‑‑My personal views on evidence was based on two things: (1) my personal knowledge of the law and the facts that I had discovered and (2) a broader and helpful interpretation of those facts by legal counsel.
Let's just back that up a little bit. The facts that you discovered over this nine-month period; what do you say was the gravamen or at least the basis in giving rise to the reasonable?---I'm not able to conclude that, Mr Moen. I'm in this case aware that we're not trying to reconvict your client. I'm simply saying that
He has never been convicted before?---No, he has an ineradicable presumption of innocence in this matter, but what I'm trying to suggest to you is that in my preparation for this case 12 years later I am not able to recall the events that in 1993 specifically led me to form any specific conclusions (ts 1618).
161 In his written submissions Noye characterises this as being a claim by Robbins that he formed his opinion of Noye's guilt merely by reading the two reports and being unsatisfied with Noye's conclusions in the final report. In my view, that is far too restrictive a view of Robbins' evidence. The trial judge referred to the information available to the police when the decision to charge Noye was made and which Robbins, and later the DPP, were to assert were the most incriminating features of Noye's conduct: [373] and [374]. It is true that the investigation and preparation of the prosecution brief developed over the years. This is itself something about which Noye complains - on the basis that it was a deliberate ploy by Robbins to keep him under pressure in the hope he would confess. Nonetheless, looking at the nature of the material there is no reason to suppose that Robbins was unaware of it in November 1993 or that it played no part in the formation of his view that Noye had tripped up. In any event, the allegation against Robbins encompasses him continuing with, as well as instituting, the criminal proceedings. The relevant information included the following:
(a) the assaults upon her by Roddan; and
(b) the break-in and burglary at her home.
162 One thing that emerges from this list is that not all of the material information came from or involved LC. In my view, these matters cannot be passed off as trivial or inconsequential. Robbins was entitled to regard them as incriminating and as creating suspicion of corrupt conduct. Of course, whether that translates to a basis for an honest belief that a prosecution was warranted can only be assessed in the light of all of the evidence. I should add that Noye's conduct in relation to the firearms was not the subject of a criminal charge - it was included in the internal police disciplinary charges. It arose after Noye's investigations into the Argyle diamond thefts had been completed. Nonetheless, it related to the association between Noye and Roddan and was a matter that Robbins was entitled to take into account.
163 There were aspects of Noye's inquiry that became apparent during the course of Robbins' inquiries and which would have put a reasonable officer on further inquiry. They are referred to by the trial judge at [124] and [129] and I do not propose to detail them here, other than to say that they include evidence of Roddan possessing a substance used to clean diamonds; evidence of the close association between Roddan and BC; and the evidence from the jeweller Devenish pointing to criminal conduct by Roddan. There is one other matter that does not appear in those paragraphs and which I will mention. It relates to the disclosure of the soil analysis reports by Noye to Roddan. This occurred at one of the meetings at a Northbridge café. Gwilliam was present and it seems that he (Gwilliam) queried Noye's action. Noye's explanation was that they were documents to which Roddan was entitled under the discovery regime in the District Court interpleader and that he had Ayton's authority to release the document. In his evidence at trial Ayton denied having instructed Noye to comply with a request from Roddan to provide documents to his solicitors (ts 1831).
164 In addition, there is what the trial judge referred to [142] as the tendentious content of Noye's October 1992 report; namely that no such evidence would ever be discovered, leading, in effect, to his recommendation that the inquiry should be abandoned. Robbins would have been justified in questioning why, given that some of Roddan's conduct was deeply suspicious, the recommendation was couched in such severe terms and had the effect of putting an end to further developments.
165 Robbins prepared a document, five pages in length, described as a 'briefing note' concerning Noye but it also contained some information concerning Roddan. The date of its preparation is uncertain. In the appeal book index it is described as 'presumably circa 1992/1993' and the trial judge thought it was prepared in late 1993 or during 1994. Robbins listed the evidence available in relation to the various charges as follows.
(a) direct evidence from a witness and co-offender (BC) about conversations in which Noye had made admissions about a deliberate attempt to write the Argyle file off;
(b) evidence of LC of conversations with Roddan and Noye in which they admitted their plans to corruptly write off the investigation file;
(c) several other witnesses who gave statements of information which were presented to Noye and either ignored by him or discounted to other people; and
(d) Noye's final report containing conclusions inconsistent with the evidence contained in its supporting annexures.
(a) Noye was given a copy of the D'Anna report from the AFP on or about 24 June 1992;
(b) the document was later found in Roddan's possession during his arrest;
(c) Noye lied to people, including Gwilliam, about the reason he could not interview D'Anna (there being evidence from D'Anna and prison authorities that he was available); and
(d) Gwilliam's statement that he saw the original of the D'Anna report in Noye's possession and later found it in Roddan's possession.
(a) Gwilliam's statement that, in 1992, Gwilliam and Noye met with Roddan at a restaurant in Northbridge and that during the meeting Noye gave Roddan a manila folder containing a number of documents, including the soil analysis report. Noye's explanation to Gwilliam for giving it to Roddan was that it was a discoverable document in the interpleader proceedings and Roddan was entitled to have it; and
(b) a statement from Argyle's solicitor to the effect that all matters relating to discovery in the interpleader case were being handled by the solicitors for the respective parties and that this particular soil analysis document was not among the list of documents discovered.
(a) evidence from the owner of the weapons who reported to the police in January 1993 that his premises had been broken into and three firearms stolen;
(b) evidence that Roddan contacted Noye to advise that he had possession of the firearms;
(c) statements from local police officers that they had been contacted by Noye advising them that Roddan had been told the name of the owner of the firearms and would be delivering the firearms to the owner; and
(d) a further statement from the owner that Roddan had returned the firearms and that he (the owner) had paid Roddan $750 as compensation.
166 Again, this demonstrates that, in Robbins' mind, there was evidence other than the testimony of LC. That having been said, it has to be acknowledged that the charges relating to the D'Anna report and soil analysis reports relied heavily on Gwilliam's statements and the conspiracy charge would have involved evidence from BC. Neither of those witnesses were beyond question.
167 Robbins had included in his analysis his own consideration, and that of officers of the DPP, of the credibility of witnesses. He also had the prosecution brief that was presented to the DPP: exhibits 107 and 108. The difficulty, from an evidentiary point of view, is that it is not now possible to say which parts of the brief were and were not in existence in November 1993 and I am not sure that much can be made (one way or the other) about its content.
168 One of the points made against Robbins is that the prosecution brief contains three separate depositions of evidence he would give. They are short documents and none of them contain evidence of wrongdoing by Noye. I do not think this is a valid complaint. Robbins was an investigating officer and Noye made no admissions of guilt. Robbins could not give direct evidence on the substance of any of the charges.
169 Robbins also saw and interviewed a large number of people. His appointment diary was tendered in evidence [exhibit 139]. Although the document was not included in the appeal books, the relevant entries are referred to by the trial judge at [382]. They include reference to a meeting on 19 February 1993 between Noye, Robbins and Superintendant Watson. It seems that there was another interview between Robbins, Watson and Noye (this time with Noye's solicitor) on 16 September 1993 and a third meeting (attended by Noye, Robbins and another police officer) on 21 September 1993. Noye also delivered a written statement to Robbins on 21 November 1993 (after he had been charged). In all of these meetings Noye steadfastly denied any corrupt conduct or, indeed, any other wrongdoing. As the trial judge recognised, Noye's denials are important and have implications for the issues of reasonable and probable cause and malice. His Honour noted the authorities in which it has been held that where a prosecutor has nothing before him but circumstances of mere suspicion, or where he knows that the acts on which the prosecution is founded were done openly and in good faith, and in assertion of the legal right, there is in general no reasonable and probable cause.
170 It has to be borne in mind that there were parallel inquiries being conducted. The Lavender/Gwilliam task force was looking at the Argyle diamond thefts while Robbins was looking at the conduct of Noye and the write‑off of the earlier investigations. Lavender and Robbins separately sought advice from the DPP. The details of the advice given in relation to the appropriateness of charging Roddan at the time, and the sufficiency of the case against him, was not disclosed at trial. Robbins sought advice about whether or not it was appropriate to charge Noye with offences of corruption. The advice came from George Tannin SC, then a senior prosecutor on the staff of the DPP, and Susan Walker, then a senior lawyer with the DPP, and was to the effect that not only was this appropriate but that it was his duty to do so. Lloyd Rayney was another officer of the DPP who gave evidence. None of Tannin, Walker or Rayney was called or cross-examined in the trial, although their written witness statements were read into the transcript. The trial judge drew the following general conclusions about the contact between Robbins and the DPP [36]:
(a) the actual evidence, as distinct from allegations, which was submitted to the officers of the DPP for evaluation, was not identified;
(b) no formal brief or proofs of evidence were then prepared or available and submitted to the DPP;
(c) the advice which was given by the officers of the DPP was largely by word of mouth and based on oral briefings which they had received about the parallel cases against Noye and Roddan;
(d) on the case against Roddan, the DPP's office received briefings from Gwilliam which would have been extremely adverse toward Noye; and
(e) at that stage, the depth of the animosity by Gwilliam towards Noye had not become fully apparent and would have been little known to the advisers at the DPP.
171 One of the bases upon which Noye advanced his case on malice at trial was that Robbins acted under, or accepted direction or influence by, officers of the DPP and failed to exercise a considered personal decision whether or not to lay the charges.
172 Robbins had been liaising with Tannin since August 1993. He initially contacted Tannin at the request of Superintendant Storm to engage the services of a senior prosecutor from the DPP to provide advice and an overview of the IAU inquiry and the inquiries of the CIB during the third phase of the Argyle diamond theft inquiry. Robbins was not the only police officer involved in assisting the DPP. It seems that Lavender, Gwilliam and Thoy (among others) were also involved.
173 Tannin's witness statement (which is unchallenged) contained the following passages:
Together with other crown prosecutors in the director of public prosecutions, including [Rayney] and [Walker], and the [DPP] himself, I advised from time to time on the formulation of charges and the evidence supporting them in accordance with the DPP guidelines. My opinion in respect of each of the complaints that were considered appropriately made was: (a) there was a clear, prima facie case on the basis of evidence that was communicated to me from time to time; (b) that there were reasonable prospects of conviction based on that evidence; (c) there was a strong public interest in pursuing the charges including, amongst other things, the principle that there is a need to maintain public confidence in the justice system and the rule of law.
In short, I considered the evidence in support of all the charges that were actually instituted by [Robbins] as a complainant appeared compelling and that it was in the public interest for complaints to be made and questions of guilt and innocence be determined by the ordinary processes of criminal justice.
I do not recall all the specific charges and details of legal advice that I gave to [Robbins] as crown prosecutor in respect of charges instituted by him as complainant.
However, I recall that he asked for legal advice from the director of public prosecutions - ... and I and other crown prosecutors carefully gave it. I did not advise that there was insufficient evidence or any special difficulty with any of the charges that were instituted by [Robbins] as a complainant other than the desirability of corroborating the accounts of the accomplices who were prepared to testify for the crown and the need to ensure the safety and welfare of vulnerable witnesses.
I considered that, prima facie, the evidence gathered by [Robbins] was strongly supportive of the charges made against Noye and Roddan and, in my opinion, was capable of being believed by a jury to the required standard of proof (ts 1406-1408).
174 The witness statements of Rayney, and Walker which, again, are unchallenged, contain these passages:
I agreed with the opinion of the DPP team that there was a proper basis for Noye and Roddan to be charged (Rayney, ts 1416).
Advice was given to [Robbins] that there was sufficient material to justify the charges being made. I distinctly recall [Robbins] deferring to [Tannin] for legal advice. Certainly at no stage did I advise [Robbins] that there was insufficient evidence or any other reason not to make any of the complaints that he made. To my knowledge no other member of the department ... gave any such advice. We discussed the matter regularly. Further and to the contrary I recall that after the [DPP] had undertaken the prosecution that the persons responsible for the prosecution, being myself, [Tannin and Rayney], never formed the view that there was insufficient evidence or any other reason for any of the complaints not to go forward (Walker, ts 1420).
175 Despite the absence of clear evidence as to exactly what evidence was delivered to the DPP and the reservations about Gwilliam's influence, the trial judge made a finding about the relationship between the DPP and Robbins that is not challenged in the appeal. His Honour said [370]:
I am satisfied that [Robbins] liaised closely with the DPP and sought advice and guidance in relation to the course of his investigation into allegations of corruption and, in particular, in relation to the significance of the evidence pointing to an implication of Noye in corrupt conduct. I have no doubt that [Robbins] naturally deferred to the senior legal staff at the office of the DPP in relation to these matters. However, there is no suggestion that he ever conceded or abandoned responsibility for the ultimate decision to lay charges to any of those officers or was in any way inclined to do so. He says, and I accept unhesitatingly, that the decision to lay the complaints against Noye was his decision, but was made only after extensive consultation with the legal advisors at the Office of the DPP and [Watson and Ayton] and the Commissioner for Police himself, in early November 1993 ... I also accept that those observations, and the advice, were all to the effect that there was sufficient evidence available to lay charges against Noye, that the circumstances were such that the charges should be laid; but, finally, and throughout, the responsibility for laying charges was that of [Robbins]. He accepted that and made the decision. He still accepts responsibility for doing so.
176 In my view the finding that, before he laid the charges, Robbins had advice that there was sufficient evidence available to lay charges against Noye and that the circumstances were such that the charges should be laid is important and, as I have said, it is not challenged. It goes to what Robbins did and to his state of mind and therefore to the honesty of his beliefs and the question of malice. Of course, it is not, by itself, determinative. I note also the finding (again not challenged) that, although he took advice from the DPP, Robbins had the responsibility to lay the charges and he accepted that responsibility.
177 The involvement of the AFP in this saga is twofold. During his investigations, Noye had liaised with representatives of the AFP to obtain access to classified police intelligence relating to Roddan and any of his associates. As a result he received the D'Anna report. But of greater significance to this issue is the role of the AFP in investigating the allegations of corruption within the WAPS. The Commissioner of Police decided to enlist the assistance of senior investigating officers from the AFP to conduct a separate investigation, which came to be known as 'AUSTPOLINV'.
178 Senior officers of the AFP interviewed officers of the WAPS, including Robbins, and reported on that investigation. The materials collected in that investigation and the ensuing report were tendered in evidence. They included transcripts of four interviews conducted with Robbins: exhibits 128(1) to (4). They are dated 7 July 1995, 27 February 1996, 25 March 1996 and 11 April 1996, respectively.
179 As the trial judge remarked [378], there was no evidence the AFP report, or any other internal inquiries by the WAPS, identified the corruption of senior police officers in the Argyle diamond theft investigations. Further, no criminal charges arising from those allegations were instituted. Accordingly, the only allegations of police corruption which resulted in charges being laid were the charges against Noye. The main significance of the AFP reports for present purposes was that, according to submissions made on Noye's behalf, they contained admissions by Robbins that he harboured reservations about LC as a witness and as to the absence of evidence generally to support the prosecutions. Counsel for Noye submitted that the trial judge made findings about the interviews but did not employ them in reaching his ultimate conclusion about reasonable and probable cause.
180 Transcripts of what transpired during the interviews were adduced in evidence. The transcripts are in the appeal materials: green appeal books vol 4 pages 955 - 1022 and vol 5 pages 1023 - 1267. They are long and discursive and, with respect to those involved could not be described as the epitome of clarity of expression. In other words, they are extremely difficult to follow. The trial judge has summarised their content [390] ‑ [442] and I do not understand there to be much dispute about the accuracy of the summation, save for the matters to which I am about to refer.
181 Counsel for Noye referred to a long passage from the interview of 7 July 1995, which appears at page 982 and pages 986 ‑ 991 of the green appeal books vol 4. He laid particular stress on a passage (pages 988 - 989) in which Robbins mentioned a corrupt group of police officers referred to as 'the Tiger Club' (of which Noye was not seen to be a member). He went on to speak of his discussions with Tannin, the preliminary hearing and the right to launch an ex officio indictment. The passage includes phrases to the effect that witnesses should be left to say what they wanted and other phrases such as 'there was nothing there, and we would have' and 'so we had no evidence' and 'the whole thing was a mess'. It would serve no purpose to reproduce the passages because they are very difficult to understand but I think this is a sufficient summation. Counsel for Noye submitted that these passages are telling because they fit with the proposition that this was a conscious lowering of standards. Robbins did not think that the kind of evidence he was describing could provide a reasonable and probable basis. He lowered his standards in the context of 'the mess they were in' and the high level concerns that had been expressed. That, in a nutshell, is Noye's pressure case.
182 Robbins was cross-examined at length about the interviews: ts 1543 ‑ 1632. I have read that material and (leaving to one side the questioning on pages 982 to 992 of the AFP interviews) did not see anything that could be described as an admission of lowering of standards.
183 The cross-examination relating to the statements in green appeal book pages 982 to 992 appears at ts 1624 - 26. I think it is important to look at those statements in context. The context is a long discursive interview (one of four) about corruption generally, not just the investigations into Noye's conduct. Further, the comment about letting witnesses have their say relates to the preliminary hearing. Robbins was cross-examined about these exchanges and explained that, so far as the preliminary hearing was concerned, the matter was in the DPP's hands and it was for Tannin to decide how to proceed. Robbins said that he did not disagree with Tannin's approach but he was unclear as to whether he and Tannin discussed how the prosecution case would be run. The consultation was quite extensive in relation to the gathering of evidence and the framing of complaints but he left it to Tannin as to how the DPP intended to run a preliminary hearing. Tannin had made the decision as to which witnesses were to be called at the preliminary hearing: see ts 1624 - 1626, 1785. Robbins also gave this explanation (ts 1610 ‑ 1611):
What was that meaning?---No, it was basically that their evidence would be brought forward. If it's objected to on the basis of hearsay or its admissibility was a matter for the court. It's very difficult when you have a witness who has a statement and they wish to take it. As counsel you would know to some degree you can manage a witness. We found some of these were a little bit more difficult than others and [Tannin] would have done his best to ensure that the matters were controlled in court, but if these witnesses had something to say and it wasn't objected to, then they would be allowed to say it.
Did you come to a view, being the investigator, that that was done with a certain amount of reckless indifference to the particular persons who were going to be named?---No, unfortunately, it had already happened. The names that had come out in the bail hearing were certainly matters that if I had a choice I would not have disclosed those names to the public. It wasn't fair on the individual officers and it wasn't supported by sufficient information for us to ever make a public disclosure that those officers were or were not of interest to internal affairs unit. However, once it was out, then it probably needed in the public interest some follow-up in a proceeding.
184 The trial judge was aware of these exchanges (see, for example, [407] ‑ [408]) and it is clear he did not regard it as an admission by Robbins that no evidence existed to justify the prosecution. He seemed to regard the main significance of the AFP interviews as a window into the troubled state of affairs, infighting and morale within the WAPS: [443]. He was also aware of the way the preliminary hearing came to be conducted: see [313] ‑ [323] and [368]. I am not persuaded that the trial judge erred in this respect.
The trial judge's findings about Robbins' assessment of witnesses
185 Very early in his reasons the trial judge said: 'I have no doubt that, in all the circumstances, any seasoned investigator would have unhesitatingly realised that the testimony of [LC] was very fragile and that it would be surprising if her credibility withstood a challenge in any court proceedings which might come to pass': [33] and see also [659]. He also commented that Gwilliam, although a person with a lot of knowledge and experience about the earlier stages of the inquiry, was not likely to be an objective, balanced or unprejudiced auditor or reporter in any investigation: [358].
186 The trial judge made a number of findings that are relevant in this respect. They include the following.
187 There can be no doubt that the trial judge believed that LC was a person whose evidence was unlikely to be believed. It is to be remembered that LC gave evidence at the hearing of this civil action. It may well be that his Honour's views of LC were informed by his experience of seeing and hearing her at trial. But when the reasons are read as a whole there can be little doubt that his Honour addressed the appropriate question: at the time the decision to prosecute Noye was made, how much reliance could be placed on the testimony LC would give? It seems that his Honour came to the view that Robbins must have been aware of shortcomings in the case against Noye, absent acceptance of LC's testimony. However, it does not follow that Robbins embarked on the prosecutions knowing that LC's evidence would be entirely worthless. His evidence in chief included these passages:
At an early stage I felt the matter was sufficiently serious that the matter should not be pursued without knowing more and knowing the cross examination [LC] would face if prosecution occurred, I needed to ensure that motives to lie were discounted and/or her evidence could be corroborated. [LC's] motivation to lie included her altercation with Roddan, [BC] was her ex husband and Roddan was her ex-lover.
If I can just stop you there, you do address this in detail later but if I can just ask you whether you considered that those issues disqualified her as a witness?---No, I didn't.
....
---Over the period of January to May 1993, investigations mentioned below progressively corroborated her allegations. I had reservations about [LC] which are set out above and below, but I did not at any time form the view that she was a witness whose evidence ought be disregarded (ts 1445).
It is certainly the case that if [LC's] information was not corroborated by others, it would have been inappropriate to proceed with the prosecutions. However, the key information that she gave was corroborated by a range of persons and, in my view, based on the whole of evidence available to me at the time that the charges were made, there was a reasonable prospect that a jury would convict Noye on those charges. Again, with my knowledge of the laws of evidence, I considered the principles of completeness for the doctrine of res gestae when applying all the evidence to the prosecution of Noye and I looked at the evidence as a whole rather than the basis of whether a particular witness alone would carry the prosecution.
Further, I discussed the weaknesses of witnesses with the DPP. The advice from the DPP was to the effect that taking into account the weaknesses of the witnesses, there was a reasonable prospect that a jury would convict Noye on the charges made (ts 1524).
188 This leads to what, I think, are critical findings on this aspect of the case because they explain not just the conclusion but the reasoning process on which the trial judge embarked. His Honour said:
Robbins discussed these issues with officers of the DPP but came to believe that the confirmation of other allegations made by [LC] (not against Noye, but against Roddan and involving third persons) provided an element of cogency to her evidence as a whole. I can understand how this interpretation could be reached, but it suffers from its own assumptions. There is the recognition that at least parts of [LCs'] evidence could not be safely acted upon in the absence of corroboration, so that only when corroboration is obtained could they be relied upon. However, what this process entails is a belief that it is the evidence of the corroborator which makes all the evidence of [LC] credible. If corroboration was necessary for those separate allegations made by [LC], why is it any less necessary for other serious parts of the evidence which cannot be corroborated and which are denied? Nevertheless, I accept that this was the conscientious belief of [Robbins] at the time but, as I have said, having regard to the many deficiencies in the credibility of [LC], I do not consider that it suffices to make the uncorroborated portions of her testimony reliable to the extent required [456].
[Robbins] had many similar reservations about [LC's] credibility back in 1993. Nevertheless, he, and others, must have taken the view that parts of her evidence could be corroborated, or that even her uncorroborated evidence, together with evidence from other sources, would be sufficient to raise a circumstantial case against Noye which would amount to sufficient proof. If so, that is a view which must also be regarded as having been abandoned because of the implications arising from the filing of the nolle prosequi. This implies no criticism against any of the persons who made or participated in making such decisions because, as is only too obvious, the reasons for doubting the credibility of [LC] appeared to increase, rather than to diminish, as time went on and other details of her conduct and the actions of other parties became known [546].
Robbins' inquiry had revealed that [LC] was correct in her basic allegations about a long-standing pattern of diamond stealing from Argyle by [BC], and the distribution of the diamonds by him, first to Roddan, and then by her to Roddan and others, from which Roddan gained large financial rewards. This truth, once it was confirmed by the confession of [BC], inevitably lent greater credibility to her allegations of impropriety by Noye and his involvement in corrupt suppression of the diamond stealing investigation [673].
I am satisfied that all this [which would include [673]] led Robbins to a genuine and sincere personal belief that Noye had acted corruptly and had combined with Roddan to ensure that the inquiry should be written-off, and that that extreme conduct could only be explained by the existence of some substantial inducement ... [675]
This was not a case where the crucial facts were, or ever could have been, within the personal knowledge of the prosecutor. [Robbins] had to rely on the information which he had obtained or which was put before him. He could not rely on it by simply taking it at face value without having regard to factors which affected its cogency - obviously the credibility of [LC]; but what he was required to do was to decide whether, in his own view, and on an objective basis, the evidence warranted putting Noye on trial for the charges proposed and, in doing so, to act honestly for the purposes of bringing a wrongdoer to justice. That is what I am satisfied animated Inspector Robbins at the time he laid the charges and throughout the period when they were pending. I am quite satisfied that personally, he reached this decision after careful and anxious thought and with guidance of superiors and advisors. It was his honest opinion that charges should be laid, as they were [682]. [emphasis added]
189 There is, in my view, a consistent pattern to the line of reasoning. Robbins came to believe that while there were problems with aspects of LC's allegations, these problems became more apparent with the passing of time. But there was some support for the cogency of her story as a whole. His Honour said he could see how that position could be arrived at, although it was not one he (the trial judge) shared. However, that does not detract from his Honour's ultimate conclusion that he should accept Robbins as a witness of truth when he testified to the belief he actually held.
190 Before I come to what I apprehend (from the oral submissions) to be the main thrust of Noye's attack on the trial judge's findings on malice, I should refer to a number of miscellaneous (but nonetheless important) factual issues that emerge in the written submissions and which feed into the discussion that is to follow.
191 The starting point is the case advanced at trial by Robbins to rebut the allegation of malice. It is best summarised in this passage from his examination in chief:
I carefully assessed the evidence in this matter. I discussed it with and took advice from officers of the DPP and from the then director. Prior to making the complaints I made I reached the view that Noye had committed the acts with which he was charged. I also was of the view that there was reasonable prospect of conviction on the basis of the whole of evidence then available to me. I believed the information provided by Gwilliam and [BC].
I was initially careful of [LC] but ultimately formed the view that the information she provided was credible in the context of specific corroboration but also in light of the circumstances as a whole. I recall discussing at length with the DPP prosecutors and taking advice on the question of the unfavourable status of the witnesses what charges should be made and whether there was reasonable prospect of conviction.
The advice that I received was to the effect that all the charges that were made ought to have been made. Further, I was advised by [Tannin] that if I did not make the complaints I would be derelict in my duty. I took all of his advice on board before making the complaints in November 1993. I did not follow it blindly. I considered it and discussed it at length.
I was personally satisfied that on the totality of the evidence that I had available to me, the precise detail of which I do not recall, that there was a reasonable prospect of conviction on all complaints, the matters ought to be put before a jury for determination and I would be neglecting my duty if I failed to make the complaints in question (ts 1536).
192 In the written submissions Noye argues that the trial judge overlooked or did not adequately consider evidence of joint subornation of BC by Robbins and Gwilliam in the interview conducted in Kununurra on 29 August 1992. This contention is not without difficulty. The formulation of grounds of appeal in terms that a trier of fact failed adequately to consider something is unsatisfactory. To contend that a relevant consideration was overlooked (an error of law), or that a finding is against the weight of the evidence (an error of fact) is one thing. To say, without more, that inadequate consideration was given to a single piece of evidence in the context of a trial involving myriad issues goes nowhere. But that is an aside.
193 According to this submission, the transcript of the interview reveals that the participants, after some coercive or suggestive discussion (presumably by Robbins) formed a tacit agreement or understanding that BC would give evidence against Roddan and Noye in a (false) way that would implicate Noye in criminal misconduct. If that were true it would be hard to resist the conclusion that it was malicious. However, it seems to me that to allege that a person suborned or attempted to suborn another person who was to be a witness in proceedings comes perilously close to an allegation of criminal conduct. In any event it would involve conscious wrongdoing, an allegation that was expressly disavowed by counsel for Noye. Further, in the context of a civil trial it would be an allegation of such gravity as to attract the pleading rules that apply in relation to fraud. There is no express pleading or particulars that satisfy those requirements.
194 A further complaint is that the prosecution brief was 'dribbled out' piecemeal over several months in a deliberate attempt by Robbins to cause Noye as much stress and anxiety as possible in order to induce him to confess. The original charges were laid in November 1993 and the three insurance fraud charges were added in mid-February, some three days before Noye was due to appear in the Court of Petty Sessions to plead to the charges.
195 Again, this was not pleaded as an element of malice. In any event the service of the prosecution brief fell within the province of the DPP, not Robbins. While Robbins was still involved there was no evidence that he directed or encouraged officers of the DPP to withhold material or to tailor the service of documents to achieve the end alleged. Nor was there any evidence that the brief was served other than in accordance with the normal run of litigious business.
196 Another complaint made in the written submissions is that, while Robbins read Noye's October 1992 report 'from front to back several times' he did not reduce any findings into writing in order to brief his superiors (Zanetti and Ayton). Nor did he examine and appreciate the importance of the notes made by Round on his (Round's) assessment of Noye's report. This, it is argued, indicates reckless indifference or wilful blindness such as to put the lie to an assertion of the formation of an honest belief. In my view, this is not a proper reflection of the evidence. These exchanges occurred in Robbins' cross‑examination:
Did you provide any written assessment or analysis of the three-volume report, the evidence that Mr Noye had accumulated and your conclusions to Mr Zanetti?---I prepared a lot of documents. I can't remember whether I specifically prepared one relating to that, unique to that report. I may have included some analysis of it in other reports or in reports generally, but I am not clear on whether or not I provided a specific analysis of that report in writing.
...
Yesterday when I asked you about your attendance upon Mr Ayton to collect the three-volume reports, the report in three volumes, you said also there was I think a synopsis by William Round or Bill Round that was accompanying that?---I'm aware that Mr Round provided one. I'm not sure whether it was provided to me at a later time or at the same time I collected that report.
You are aware, aren't you, that albeit Mr Round came to the view that there were some further inquiries to be made, Mr Noye was justified in the conclusion that he had made?---I can't recall precisely. I'm aware that there was not a formal report to Mr Ayton by Mr Round; it was a series of notes that he had made relating to the report, but that was simply Mr Round's opinion at the time.
Did you speak to Mr Round about that?---I remember speaking to Mr Round on a number of occasions. I can't remember whether I specifically questioned him about his set of notes.
Did you analyse his report and go through it?---His report?
Yes?---Probably not. I felt that it was better to do my own (ts 1768 ‑ 1769).
197 In my view, this is not a concession by Robbins that he did not reduce to writing any findings from his reading of Noye's report. There may not have been a formal report as such but there may have been some analysis of it in other reports. I take the last exchange to be a reference to Round's notes. It seems to me that, in the context where new material had emerged (LC's confession) and Robbins had been commissioned to conduct an investigation, it is not surprising that he may not have paid much regard to an opinion expressed by another officer prior to the disclosure of the additional material. It does not, either alone or in conjunction with the other matters to which attention has been drawn, demonstrate reckless indifference.
198 This brings me to the part of appeal in which counsel for Noye attempted to bring together the various strands of the challenge under the general statement that the existence of pressure and the egregious absence of reasonable and probable cause together should have led to a finding of improper purpose and therefore of malice.
199 So far as the appellate process is concerned, this branch of the argument calls in aid all of the grounds of appeal and particulars previously referred to. The context is that there is no overt allegation that Robbins engaged in conscious wrongdoing. Rather, counsel submitted, the trial judge mistakenly and illogically treated honesty of belief as proof against impropriety of motive. That, counsel submitted, is wrong as an abstract proposition and wrong on the facts of the case. I am not sure that the first part of that statement is accurate. Counsel did not advance an argument that it would never be possible to resist a claim in a situation where there was, objectively, no proper cause for the bringing of the prosecution and yet a defendant maintained that he or she honestly believed that there was. I think this is a case based on its own facts. The real question, it seems to me, is whether the strong findings that, objectively, there was no reasonable and probable cause can be reconciled with the equally strong findings of honest belief on the part of Robbins, an experienced and competent police officer.
200 Counsel for Noye did not shy away from the fact that Noye had to establish malice (for malicious prosecution) or bad faith (abuse of public office). For sake of convenience I will use the single term 'malice' and will assume that there is no material distinction for the purposes of this case. The case advanced at trial relied heavily on the assertion that Robbins had acted to advance his own career prospects. This was roundly rejected by the trial judge and is not pursued on appeal. That leaves the question of pressure as the grounding for the submission that the trial judge should have found the existence of malice. In other words, the absence of reasonable and probable cause means that succumbing to pressure is the only logical explanation for Robbins' error of judgment in launching the prosecution and this should inevitably have led to a finding that Robbins was actuated by malice.
201 Some aspects of Noye's argument on this issue are not easy to reconcile with his concession that Robbins was not guilty of conscious wrongdoing. In an exchange between the bench and counsel, a distinction was drawn between an argument that Robbins held an honest belief but it was one that was objectively unjustifiable and an argument that, given that there was no reasonable and probable cause, Robbins could not have held an honest belief. Be that as it may, I think the thrust of Noye's argument is clear.
202 The factual matrix against which this question falls to be answered is the same as that set out in the earlier sections of these reasons. I think it is clear that a personal, honest opinion is not sufficient to resist a finding of no reasonable and probable cause, nor is it necessarily an insulation against a finding of malice based on improper purpose. Lack of reasonable and probable cause is largely circumstantial. In A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 the Court said that the absence of reasonable and probable cause contains both subjective and objective elements: what did the prosecutor make of the material and what should the prosecutor have made of it? The Court also made it clear that pursuing an improper purpose (sometimes described as an illegitimate or oblique purpose) can amount to malice if it is the sole or dominant purpose actuating the prosecutor: [90] ‑ [92].
203 To understand the point advanced on behalf of Noye it is necessary to go back to the reasons for decision. The background is the finding, for example in [681], that notwithstanding the complexity of the situation Robbins honestly believed that the evidence disclosed a case against Noye, which meant that he should be charged and put on trial. Turning to malice, his Honour said [691]:
This then directs attention to the question of whether or not malice, in the sense of instituting and pursuing the charges against Noye for an improper or collateral motive, has been proved by the plaintiff. Malice can be established, regardless of whether or not the prosecutor was actually motivated by ill will towards the plaintiff. It is sufficient if his motivation was for some improper or collateral motive, such as a reluctant wish to comply with a requirement of his superiors to lay a charge when he, himself, did not consider that a charge was justified: A v The State of New South Wales (supra).
204 Then in [692] ‑ [699] his Honour went through the malice case based on the two limbs of self interest (promotion) and corporate interest (saving the reputation of the WAPS). Having rejected the former, the latter was left for consideration. Importantly, his Honour found [695]:
On the question whether or not there was malice in the sense of the pursuit of an improper motive of making Noye a scapegoat for the general deficiencies of the [WAPS], I am satisfied that [Robbins] was not actuated by any such motive.
205 In the appeal hearing, considerable attention was paid to the trial judge's line of reasoning in [700] ‑ [702] and for this reason (and although they are long) I need to set them out in full.
I have already explained how I have concluded that the decision was, inevitably in the circumstances, influenced by the strength of the opinions of Gwilliam, Thoy and the Argyle security officers which were coming from the Lavender/Gwilliam task force. But that does not mean that the decision was improper or anything other than the product of an honest opinion by Robbins that the particular charges should be laid. Much later, when the shortcomings in the evidence came to be better appreciated, the DPP dropped the charges and no attempt has been made to revive them. However, I am satisfied that when they were made, [Robbins] was honestly of the opinion that they should be laid as part of his responsibility to put a suspected offender on trial for good cause. For this reason I also reject the plaintiff's submissions that the prosecutions were malicious in the sense of being instituted for an improper motive or to find a scapegoat for the more general failings of the [WAPS] [700].
The effect of these conclusions is that I am satisfied that [Robbins] was the prosecutor in relation to the criminal charges laid against Noye and that those charges were later terminated in favour of [Noye]. I am also satisfied that [Noye] has not established that, in instituting and maintaining the proceedings, [Robbins] acted maliciously. In fact the evidence establishes, and I find, that he acted only for the proper motives of instituting criminal proceedings against a person whom he believed should be put on trial for the offences charged. I reach these findings, notwithstanding my conclusion that in initiating the charges [Robbins] did not, objectively, have reasonable and probable cause to do so, because of the great extent to which the charges depended upon the credibility of [LC] who could not be expected to be regarded as a witness of truth. In reaching that conclusion, I am satisfied that [Robbins] himself honestly believed that there was a proper basis for laying the charges, and that he reached that belief after taking advice from persons whom he was entitled to respect and rely upon in that regard. Objectively, however, it should have been apparent that in the face of Noye's denials, and his co-operation with the IAU investigation, the case for prosecution could not be made out on the basis of the tenuous credibility of [LC] [701].
In relation to the criminal charges, there can be occasions where the absence of reasonable or probable cause for initiating the prosecution is itself some evidence of malice: see A v The State of New South Wales (supra) at [40], [90]. However, that is only because proof by a plaintiff that there was no reasonable or probable cause for instituting a prosecution may, when taken with all the other facts, show that the dominant purpose of the prosecutor in initiating the charge was for a purpose other than the proper invocation of the criminal law because it was an illegitimate or oblique motive. That possibility has been completely dispelled in the present case by the evidence which has satisfied me that [Robbins] honestly believed that there was a sufficient basis to charge Noye with the offences laid. The fact that, in different circumstances, and with the benefit of advice less influenced by the strong opinions of the Gwilliam team, a reasonable person should have reached a different opinion, does not detract from the integrity of the personal motives and animation of [Robbins]. All this means that the plaintiff's claims against [Robbins] must be dismissed [702].
206 Counsel for Noye submitted that the phrase 'for this reason' towards the end of [700] discloses the illegitimacy in the reasoning process on which his Honour embarked. The reason encompassed within the phrase 'this reason' is the holding by Robbins of an honest belief that the charges should be laid. Counsel for Noye submitted that this is the critical error that 'swerves the whole case'. That is, having (correctly) noted in [691] that malice can be established, regardless of whether or not the prosecutor was actually motivated by ill will towards the plaintiff, his Honour erred in, effectively, saying: 'Because you had an honest belief, your purpose cannot be an improper one'.
207 It has to be borne in mind that Noye pleaded, as a particular of malice, that Robbins did not hold an honest belief as to Noye's guilt: statement of claim par 18(b)(i). It must follow, on Noye's own case, that the question whether Robbins held an honest belief as to Noye's guilt was relevant to malice. The attempts by counsel for Noye on appeal to downplay or discount the finding of an honest belief has to be seen in that light.
208 As the discussion in A v The State of New South Wales recognises, the concepts of reasonable and probable cause and malice are separate but related. They are questions of fact. I accept, as counsel for Noye submitted, that facts relevant to lack of reasonable and probable cause may (perhaps will) also be relevant to the question of malice. However, it does not follow, either as a matter of principle or in the circumstances of this case, that a belief, actually and honestly although unreasonably held, is irrelevant to malice where malice is alleged to exist in the form of impropriety of purpose. I accept also that impropriety of purpose does not depend upon any conscious wrongdoing in adopting the purpose. But it will always be a question of fact to be determined according to the nature of the illegitimate or oblique purpose and the circumstances of the case generally.
209 I cannot accept the proposition advanced on Noye's behalf because it involves too narrow a reading of the reasons. Looked at in this way, the appeal depends on three words in a 300 page judgment. It ignores the whole structure of the reasons and the other parts of the paragraphs immediately before the impugned words. This is why I have structured this section of my reasons in the way I have. The starting point is the honestly held belief that a case for prosecution existed: [681]. The trial judge recognised that malice could be established regardless of ill will: [691]. He then identified the elements of Noye's (factual) case on malice: [692] and following. In [695] he made an express finding that Robbins was not actuated by the need to find a scapegoat. In [699] and [700] the trial judge acknowledged the existence of pressure and makes the reference ('for this reason') on which Noye relies. But this is followed by [702] in which the trial judge makes the following findings or comments:
(a) Noye has the onus of establishing malice;
(b) on the evidence Robbins acted only for the proper motive of instituting criminal proceedings against a person whom he believed should be put on trial for the offences charged;
(c) Robbins believed there was a proper basis for laying the charges after taking advice from appropriate sources; and
(d) those conclusions take into account the problems with LC's credibility and, accordingly, the lack of reasonable and probable cause.
210 Counsel for Noye submitted that nowhere did the trial judge make a finding that Robbins 'stood apart' from the pressure. I cannot agree. The allegation of pressure was advanced during the trial under a number of guises of catch calls: 'scapegoat', 'nailing', 'restoring the reputation', 'fulfilling public expectation of an imminent prosecution', and so on. I do not understand an argument to have been advanced on the basis that the trial judge misunderstood or identified in too narrow a fashion the gravamen of the pressure question. Indeed, if counsel for Robbins is correct, Noye did not raise the issue squarely at trial and gained the benefit of it only because of the intervention of the trial judge. Whether or not that is true, the tenor of the cross‑examination of Ayton on the point does not widen the issue. It seems to me that a fair and proper reading of [695] and [702] amounts to a clear and express finding against Noye on the point. Regard should also be had to [452] in which, after commenting on the considerable influence of Gwilliam and Thoy, public crisis over confidence in the police and deliberate leaks suggesting an imminent arrest for corruption, his Honour said: 'To say that this forced the hand of [Robbins], or the recommendations which he received from the DPP, would be to go too far'.
211 Whenever the law has to grapple with the subjective/objective dichotomy, problems are bound to arise. This area of the law is no exception, as the Court recognised in A v The State of New South Wales and the trial judge saw in this case [684]. It seems to me that the facts of this case illustrate the complexities. Here, the question whether Robbins held an honest belief that a proper case existed for laying the charges was relevant to, but not determinative of, the element of reasonable and probable cause. It was also relevant to, but not determinative of, the issue of malice. To succeed, Noye would have to establish that Robbins' sole or dominant purpose in charging him was an improper one. In the way the facts turned out, the trial judge was left with two alternative explanations: either Robbins was actuated by a desire to find a scapegoat (or similar terminology) or he laid the charges believing that there was a proper basis to do so. It is a little difficult to see how a choice between the two alternatives could have been made without some examination of Robbins' subjective state of mind and the honesty of the belief he professed to hold.
212 The argument is that Robbins succumbed to the pressure and lowered his standards. Counsel for Noye submitted that nowhere is this more obvious than in the interviews with the AFP officers in 1995 and 1996. Again, I do not accept the argument and I see no need to repeat what I have said in the section headed 'The Australian Federal Police investigations'. Speaking more broadly, I think the true nature of the reasoning process is this: notwithstanding the objective elements relating to reasonable and probable cause (especially the weaknesses in the case against Noye due to credibility issues with LC and Gwilliam), the trial judge was not satisfied that the desire to 'nail' someone was the sole or dominant purpose. The finding that Robbins held an honest belief that there was a proper basis for laying the charges was an essential part of the reasoning process but it did not stand alone. It fell to be assessed against the background of all the facts, including the matters that raised a suspicion as to the circumstances in which Noye made what the trial judge described as an egregious error in expressing his recommendations for closing down the inquiry in such strong terms. I say that the holding of an honest belief was an essential part of the process because, in the circumstances of this case, it is difficult to see how, if, objectively speaking there was no reasonable and probable cause and there was no honest belief, there could have been a finding other than that the prosecutor was actuated by malice.
213 In my view, the evidence led from the several officers of the DPP was important for the finding of an honest belief. Certainly, it was not without its problems: the lack of clear information about the evidence given to the DPP is an example. However, there is no suggestion that Robbins deliberately withheld information from the DPP or misled his officers in any way. Robbins' evidence (which was accepted by the trial judge) was that the DPP officers told him he would be derelict in his duty if he did not press charges. This also has to be borne in mind.
214 The argument advanced on behalf of Noye is that in [700] ‑ [702] the trial judge effectively conflated the questions of reasonable and probable cause and malice. In my view, that is not a proper reading of the paragraphs. The question of reasonable and probable cause has been dealt with in earlier sections of the reasons, ending with a conclusion in the last sentence of [690]. The opening words of [691] are: 'This then directs attention to the question of whether or not malice, in the sense of instituting and pursuing the charges against Noye for an improper or collateral motive, has been proved by [Noye]'. What follows is a discussion aimed at resolving that issue. The fact that malice and reasonable and probable cause, though separate, are related issues means that it is difficult to place consideration of them in neat compartments and elements of both are intertwined in the discussion. The difficulties are compounded by the fact that the subjective element may be (and in this case, is) relevant to both issues. Read closely, the conclusions in [700] ‑ [702] do not conflate the two questions and nor is the manner in which they deal with the subjective element relevant to malice inapposite.
215 The alternative basis referred to in pars 2.3, 4.3 and 6.2 of the grounds of appeal (reckless indifference) can be dealt with in a more summary fashion. Counsel for Noye submitted that, given the force of the findings by the trial judge about the lack of reasonable and probable basis, there is a yawning gap between what was appropriate and the information that was available to Robbins. The only conclusion that could be drawn is that this was not enough to deter Robbins. Counsel referred, once again, to the interviews with the AFP officers: the apparent indifference to whether there was 'anything there' and a conscious decision to let the witnesses 'rip' - to let them say whatever they wanted to say and let it all come out. However, the challenge based on reckless indifference does not add any weight to the factual matrix relating to illegitimate or oblique motive. In my view, the trial judge was entitled to reach the finding that Robbins was conscientious and diligent in his approach.
216 Again, the fact that he took advice from appropriate sources and measured that advice, knowing that he had the responsibility for the conduct of the investigation, is a factor weighing in Robbins' favour. Similarly, the fact that the decision to prosecute was not made summarily (it was made nine months after the inquiry started), while by no means determinative, points against reckless indifference. When Robbins and Watson interviewed Noye on 16 September 1993 they told him that no decision had then been made as to whether he would be charged.
217 I refer to the comments I made in [148] to [150] of these reasons about the approach an appellate court should take to a challenge to findings that rely (to a greater or lesser extent) on credibility findings. In my view those comments apply here as well. It must follow that the trial judge based his finding that Robbins held the honest belief that the prosecutions were properly based, at least in part, on his favourable impression of Robbins. Again, I cannot discern any area where the trial judge might have misused his advantage in seeing and hearing the witnesses and in developing a feel for the case based on the evidence as a whole. To the extent that the findings against the existence of malice arise by inference from facts not depending on credibility, I am not persuaded that the trial judge erred.
218 All of this can be summarised in a slightly different way. The absence of reasonable and probable cause and the presence of an honest belief can co‑exist. The absence of reasonable and probable cause, while relevant, will not lead inevitably to a conclusion of malice. The presence of an honest belief, while relevant, will not lead inevitably to a conclusion that there was no malice. It is a question of fact to be decided on the evidence and in the light of all of the circumstances. In my view, this is how the trial judge approached it and the conclusions he reached, namely, that Robbins believed there were good grounds to prosecute, he did not pursue a collateral purpose and he was not actuated by malice, were open on the evidence.
219 In my view none of pars 1, 2.1, 2.3, 4.1, 4.3, 6.1 or 6.2 of the grounds of appeal have been made out.
A specific challenge - no separate consideration
220 I wish to turn now to a specific area of challenge. In pars 3 (ground 2) and 5 (ground 3) of the grounds of appeal the complaint is made that the trial judge failed to make separate findings in relation to the charge arising from the publication of the D'Anna report and the three insurance fraud charges respectively. Had he done so, Noye contends, he should have conduced that Robbins' prosecution of Noye on those charges was actuated by malice.
221 On ground 2 Noye essentially echoes the points he made in relation to ground 1 (pars 1 and 2). In his submission, the charge arising from the publication of the D'Anna report relied almost entirely on the credit of Gwilliam. Robbins knew, however, that the credit of Gwilliam had been hopelessly compromised. In relation to ground 3 Noye takes the same approach, this time based on the hopelessness of the case because it relied heavily on the credibility of LC.
222 In my view, these grounds are without merit. It is apparent that the trial judge was alive to the differences between the various charges and he gave them separate consideration: see, for example, [248] and [249]. The trial judge noted that, alone of the charges, Robbins did not conduct an interview with Noye about the D'Anna report before laying the charges. Noye's case relied on the same particulars for the allegation of malice in relation to each charge. In my view, no different result could have ensued if the trial judge had gone painstakingly through the evidence six times and announced the same findings six times.
223 Ground 4 relates to the cause of action for misfeasance in public office. Noye refers to the findings at [113], [141] and [147] that at the time Noye delivered his October 1992 report his expressed conclusions were not unreasonable, untenable or inconsistent with the information available to him. There was, Noye alleges, no reasonable and probable cause for Robbins to charge him. His Honour ought to have concluded that the laying and continuation of the charges amounted to a misuse or wrongful and unreasonable use or excess of prosecutorial power vested in Robbins.
224 Noye submits that Robbins displayed malice or wilfully reckless indifference or deliberate blindness to the invalid exercise of power or lack of power. His indifference or blindness was demonstrated by the fact that he agreed to prosecute Noye on the basis of allegations which were not substantiated by the evidence.
225 The cause of action in misfeasance in public office was not addressed separately in oral submissions. Counsel for Noye pointed out that there was a close relationship between the torts of malicious prosecution and misfeasance in public office and that, in the circumstances of this case, they were largely parallel. One difference was that in misfeasance in public office it may not be necessary to make out lack of reasonable and probable cause. There may be another distinction in that the animus element is termed as bad faith rather than malice. This can be accomplished by demonstrating that he or she acted in pursuit of an improper or collateral purpose and with the intention to harm the plaintiff. The same element may be satisfied by proof that the office holder was acting in the knowledge that the conduct was beyond power and that it was likely to harm the plaintiff; but there must be actual knowledge of want of power.
226 The written submissions in support of this ground are lengthy but I have been unable to discern any basis from which it would emerge that a different factual matrix applied to misfeasance in public office than had been considered in relation to malicious prosecution. There was no direct evidence that Robbins knew that he lacked power. A finding that he acted (knowingly) without power or in excess of the powers that resided in him would necessarily be made by inference. I have been unable to identify facts that were not considered in relation to the tort of malicious prosecution and from which the necessary inferences could be drawn. Nor am I able to see how, in the circumstances of this case, the element of bad faith would differ from the concept of malice. So far as bad faith was said to emerge from the institution of proceedings for an improper purpose, there were no facts that would compel a different conclusion.
227 In my view, ground 4 (pars 7 and 8 of the grounds of appeal) fails for the same reasons as have been expressed in relation to grounds 1, 2 and 3.
228 Ground 1 of the notice of contention alleges that the trial judge erred in finding that Robbins lacked reasonable and probable cause (objectively speaking) for laying the complaints. Robbins contends that the trial judge misdirected himself and determined whether he found LC credible when he should have addressed himself to the question whether a jury would or might reasonably have found her credible. I do not accept this challenge. The trial judge made a number of comments that indicate that he addressed the correct question. The following are examples:
Given the overall conduct of [LC], it would be very surprising if the reason for doing so did not include, to a significant extent, an appreciation that the uncorroborated allegations of [LC] stood very little chance of being accepted by a jury in the face of consistent denials of any involvement in such an offence by Noye from the very beginning [325].
I regarded [LC] as a person of very low credit and I have no doubt that by any experienced police officer, investigator, prosecutor or other lawyer, she would quickly be recognised as a person in whom a court or a jury would not be disposed to place any significant degree of trust [659].
Perhaps one can infer that if this course had been followed [LC's] credibility would have been destroyed in the face of a jury, or rendered so inconsequential that it could not support any adverse verdict [689].
229 The second basis of the argument is that the trial judge placed too much emphasis on the centrality of the evidence of LC. In my view, the trial judge's determination on this issue against Robbins is unassailable. His Honour did look at the totality of the evidence and information that was before Robbins. He formed the strong view that unless the trier of fact accepted the evidence of LC (and for that matter Gwilliam in relation to the D'Anna report charge) there was little prospect of success. This time, my view of the advantage enjoyed by a trial judge works against Robbins. This is not directly a credibility matter because his Honour was looking at how a reasonable and prudent investigator would have viewed LC's evidence in 1993. It may have been coloured by what happened when LC came to give evidence in the trial in 2005, but that is not the point. The advantage here is the feel for the case based on all the evidence.
230 Finally, there is an argument concerning onus. Robbins contends that Noye had the onus of identifying the totality of the evidence available to Robbins at the time the charges were made and that he had failed to do. This, Robbins contends, is fatal to a claim of lack of reasonable and probable cause. In Mitchell v John Heine & Son Ltd [1938] NSWStRp 33; (1938) 38 SR (NSW) 466 (a case of malicious prosecution tried by a judge and jury) Jordan CJ said [470 ‑ 471]:
If the plaintiff supplies no evidence of what information the defendant acted on, or if, though supplying evidence as to some information having been in the possession of the defendant, he gives no evidence enabling the inference that the defendant did not possess other relevant information pointing to his guilt, the plaintiff fails so far as this line of attack is concerned. It is only when he has supplied some evidence of the nature of the whole of the information that the defendant had, that he can invite an inference that it was insufficient.
231 The only evidence on this question to which the Court was referred in either written or oral submission was ts 936 in which Noye was asked about the depositions in the prosecution brief. It is apparent that there was an immense amount of material available to Robbins. The finding in [679] is that there was no evidence as to precise information put to the officers of the DPP when advising Robbins about whether or not the circumstances justified the laying of charges against Noye. But no one seems to have been in much doubt as to the nature of the information Robbins had. The trial judge outlined what he regarded as the materials on which Robbins based his decision in several places, including [371] ‑ [378] and [586] ‑ [588]. The last mentioned paragraphs relate to the prosecution brief (exhibits 107 and 108) and therefore suffer from the problem of uncertainty as to exactly what materials were in the brief at particular times. I note in passing that the reproduction of the documents constituting the prosecution brief and which went into evidence as exhibits 107 and 108 comprise some 1271 pages of material. The trial judge was satisfied that the information summarised and reviewed in those paragraphs, or at least the substance of it, was available to Robbins and his team by the time the decision was taken to charge Noye with the criminal offences: [588]. It seems to me that this brings it within the principle referred to in the last sentence of the quote from Mitchell.
232 I would not uphold the first ground in the notice of contention.
233 In the second ground Robbins contends that the trial judge should have found he was not the prosecutor after 12 November 1993, when the DPP served notice under s 12(b) of the Director of Public Prosecutions Act 1991 (WA) that it was taking over the prosecutions. In the light of my conclusions on the grounds of appeal it is not necessary to deal with this ground. For the record I should add that had I been required to deal with it I would have been inclined to dismiss the ground for the reasons given by the trial judge in [370], [432], [640] and [664] ‑ [667].
234 In the section entitled 'The appeal - an overview' I posed a number of questions. I am now in a position to answer those questions.
(a) did he hold the belief referred to in 1;
(b) did he succumb to pressure to find a scapegoat and thus act for an oblique or improper purpose; or
(b) did the conduct of his inquiry and the decision to institute and continue with the charges demonstrate reckless indifference to the truth or falsity of the allegations on which the charges were based?
Damages The trial judge's provisional assessment
236 The trial judge made a provisional assessment of the damages he would have awarded had he found in favour of Noye in his causes of action against Robbins in malicious prosecution and misfeasance in public office. It has to be borne in mind that a favourable verdict for Noye would, of necessity, have involved a finding that Robbins had acted with malice (or its equivalent for misfeasance in public office). This makes a provisional assessment difficult because an award will be sensitive to the exact nature of the conduct found to be malicious. Like most things, there are degrees within the broad species of acts or omissions that might constitute malice. I will assume that in this case the malice lay in Robbins laying charges to secure a scapegoat so as to satisfy mounting public expectation of an imminent prosecution of a corrupt police officer in the interests of restoring the reputation of the WAPS.
237 As I understand it no one argues that his Honour misdirected himself as to the legal tests relevant to an award of damages in circumstances such as this. He noted that damages can be awarded for injury to the plaintiff's reputation, to the plaintiff's person and to the plaintiff's property. Once damage under any one or more of the three heads is proved, the award of damages is at large subject only to the condition that the damages must not be grossly disproportionate to the losses or injuries sustained. The trial judge then found that injury could be identified under each head; namely ([755] ‑ [757]):
(a) the charges reflected on Noye's integrity and the disgrace associated with them injured his reputation and good name;
(b) they involved a potential risk of imprisonment and, in any event, he was on bail for an extended period, thus suffering a restriction on his liberty; and
(c) there was pecuniary loss, including the financial consequences of the damage to his reputation.
238 The trial judge also found that as a result of the investigation and the charges Noye suffered anxiety and stress which developed into depression. He required medical attention and supervision, although (at time of judgment) the disability was under control. His Honour found that Noye was shunned by colleagues and contemporaries and the ostracism was continuing. There had been no public vindication such as will often occur when a verdict of acquittal is entered. The prosecutor's public statement when presenting the nolle prosequi was grudging and contained no recognition that Noye was not guilty of the charges laid: [758] and [759].
239 Pecuniary loss in the form of loss of wages and allowances was calculated for the period 14 October 1999 (when he retired on medical grounds) to 16 January 2004 (notional retirement at age 60) at the rate of pay for a senior sergeant. On a net (after tax) basis, and after deducting moneys he had earned from other sources in that period, the amount concerned was $144,013. His Honour then made a 5% deduction for contingencies, added an allowance for net loss of superannuation benefits and interest under s 32 of the Supreme Court Act 1935 (WA) to arrive at a final figure for pecuniary loss of $187,676. The trial judge found that the amount expended by Noye in defending the charges was never proved and could not be included in the calculation. I think this was conceded by counsel who appeared for Noye at trial in closing submissions: ts 2541. These calculations are to be found at [760] ‑ [779].
240 His Honour then announced awards of $50,000 for injury to reputation and $50,000 for injury to health and restriction of liberty. This was done, as would be expected in the circumstances, without further analysis. These two figures, when added to the sum for pecuniary loss, explain the final provisional damages assessment of $287,676.
241 The trial judge then turned to the questions of aggravated and exemplary damages. At [781] he remarked that in the circumstances of this case both were available. However, it had been but faintly pressed and he saw no basis for an award of exemplary damages. His Honour noted that the consequences for Noye's health and self-confidence had been profound and conspicuous. Although there was a basis for aggravated damages, the trial judge felt that the allowance made for injury to person took the relevant matters into account and no additional allowance would be necessary.
242 Grounds 5 and 6 of the grounds of appeal relate to the provisional assessment of damages. I have summarised them in an earlier section of these reasons. I propose to deal with this aspect of the appeal by considering three propositions that arise from the grounds:
(a) the award for pecuniary loss was manifestly inadequate because it was wrongly based on a finding that Noye would not have been promoted to a higher rank;
(b) the trial judge should have awarded aggravated and exemplary damages; and
(c) the quantum awarded was so low that error should be inferred.
243 The trial judge considered the evidence about Noye's prospects of promotion from his (1992) rank of senior sergeant to either inspector or superintendant: [608] ‑ [618]. Noye's evidence was that he had anticipated promotion to the rank of inspector four or five years after 1991: [615]. His Honour made a finding that Noye would not have been promoted, that he would have continued at the rank of senior sergeant and that damages should be assessed on that basis: [618]. In summary the reasons for that conclusion were:
(a) emphatic evidence from Ayton that Noye did not have the competencies for a more senior rank and would not have been promoted to the rank of inspector;
(b) evidence of some breaches by Noye of police regulations (improperly releasing information from a police computer for which he was fined $200 in August 1992 - not connected with the Argyle matter);
(c) general opinions about the limited capacity of Noye to undertake serious or complicated inquiries;
(d) the unusual aspects of Noye's investigations into the Argyle diamond affair (see [161] of these reasons)
(e) the view, floated by Watson in the 16 September 1993 interview with Noye, that the Argyle investigation was really beyond him: green appeal book vol 6 pages 1455 ‑ 1456.
244 In the written submissions the contention is advanced that the trial judge should not have relied on Ayton's evidence because Ayton was either disinterested, incompetent or untruthful in his participation in the Argyle diamond matter insofar as his dealings with Noye were concerned. What follows (pars 109 to 115 of the written submissions) is a long list of matters that ought to have led the trial judge to reject Ayton as a witness of truth. As this is related to a provisional assessment of damages, I do not propose to go, chapter and verse, through the complaints. The trial judge saw and heard Ayton and he accepted Ayton as a credible witness. I am not persuaded that he erred in doing so.
245 In any event, it seems to me that the matters raised in (b) through to (e) above create an evidentiary base from which it would have been open to the trial judge to have reached the conclusion he did.
246 I am not aware of any basis other than the prospects of promotion on which the calculation of pecuniary loss is challenged. It follows that I would reject this aspect of ground 6.
247 The trial judge acknowledged that the basis had been laid for an award of aggravated damages but felt that the quantum assessed took into account all relevant matters. The finding of malice (which would have been necessary to open up the questions of damages) would have opened up the possibility of exemplary damages. His Honour's comment that exemplary damages were but faintly pressed at trial seems to be accurate. Neither the written closing submissions dated 7 August 2006 nor the oral closing by counsel contain express reference to the basis on which exemplary damages should be awarded. The closest those materials come is a section in the written closings (pars 814 to 818) referring to 'contumelious conduct'. This is a phrase sometimes employed in the context of exemplary damages.
248 The position is different in relation to aggravated damages. Counsel reminded the trial judge that aggravated damages were in issue: see, for example, ts 2401, 2465 and 2541.
249 In the written submissions the contention is advanced that the trial judge should have awarded aggravated damages of $100,000 and $500,000 by way of exemplary damages. Reference is made to Nye v The State of New South Wales [2003] NSWSC 1212 [299] ‑ [303]. Nye involved an action for malicious prosecution and exemplary damages of $750,000 were awarded. However, it goes without saying that each case is different and while resort to previous cases will assist in identifying principles it will be of lesser assistance in relation to quantum, where the exact circumstances in which the liability arises will be critical.
250 In Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 the plurality said that exemplary damages are awarded rarely and, while they recognise fault, not every finding of fault warrants their award: [12]. They also said that it arises chiefly, if not exclusively, in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights: [20].
251 This illustrates the proposition that the exact circumstances of the case will be critical. Here, Noye disavowed a case based on conscious wrongdoing. The trial judge rejected the case for malice based on Robbins' desire to feather his own nest and to advance his own career prospects, and that conclusion is not now challenged. On appeal Noye argued that, while the trial judge ought to have found that Robbins could not actually have held an honest belief, even if he did it would not have prevented a finding of malice. The challenge here can only proceed on the basis that malice arises because Robbins, without engaging in conscious wrongdoing, succumbed to pressure to find a scapegoat so as to reduce embarrassment for himself and the WAPS. This may, but would not necessarily, have justified an award of exemplary damages. Given these matters, and the way the case was (apparently) advanced at trial, I am not persuaded that his Honour erred in declining to award exemplary damages.
252 Aggravated damages are awarded to compensate a plaintiff when the harm done by a wrongful act was aggravated in the manner in which the act was done: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 149. Here, the trial judge turned his mind to those questions and concluded that the awards he had made did not require augmentation. This is a value judgment. In the next section I will turn to the manner in which the acts were done and their impact on Noye. It will be best to leave a conclusion on this attack until that exercise has been done.
253 The final question is whether the awards of $50,000 for each of injury to reputation and injury to health and restriction of liberty are so low that error must be inferred.
254 The context, once again, is an assumption (for the purposes of the provisional assessment) that Noye was used as a scapegoat to relieve pressure on Robbins and on the WAPS. The circumstances in which the nolle prosequi came to be presented would be relevant here.
255 The lead up to the charges and the course of events thereafter were the subject of a significant amount of publicity in the print media and on television: see, for example, green appeal book vol 3 pages 675 ‑ 713. I should mention in passing that the press articles were admitted into evidence on the question of damages and not as proof of the truth of their contents: ts 432. They show that the question of police corruption and the charges against Noye were in the public arena.
256 The charges against Noye were before the courts for five years and during that period he was unable to fight back or respond to the allegations in the media. This caused a sense of frustration and depression: see, for example, ts 881. Noye gave evidence at trial of his belief that the publicity destroyed his career, credit, character and reputation and caused him immense mental anguish, depression, sleepless nights, emotional withdrawal and isolation from family friends and associates: ts 901 ‑ 904. The anxiety and stress caused a decline in his health and medical evidence was adduced in this respect: ts 1119, green appeal book vol 6 pages 1460 ‑ 1478. His health continued to suffer for some years after the charges were finalised.
257 Noye says he suffered great embarrassment throughout the period. As a police officer he was a person whom the community would expect to set high standards. The wrongful laying of charges increased his sense of embarrassment because he felt his profession and his own character were being brought into disrepute: see, for example, ts 914, 1351.
258 I think questions of causation may have been raised by Robbins at trial. While the trial judge made no express findings in that respect it can be assumed that he concluded there was a sufficient causal nexus between the loss and the wrongful acts and that the loss was not too remote. I do not find it necessary to examine that element of the damages assessment.
259 There can be no doubting the depth of Noye's anxiety and the profound effect these events have had on his life. The question is whether the awards of $50,000 for injury to reputation and $50,000 for injury to health and restriction of liberty are within the range of a sound exercise of the value judgment entailed in making such an assessment. Views will differ on that question, especially given that it would have been open to the trial judge to make a separate award of aggravated damages. In the end, I cannot see any material respect in which the trial judge erred in his appreciation of the evidence as alleged in the grounds of appeal. He was aware of the factors that I have mentioned (see, for example [589] to [607]) and a fair reading of the reasons indicates that he had them in mind when he came to make the provisional assessment: [758] and [759].
260 This leaves only the question of inferred error. The relationship of the award to the injury and its consequences as established in the evidence must be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that the award can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125. Having heard all of the evidence over a long period the trial judge exercised his judgment and I am not persuaded that in doing so he made an award that is so low that error has to be inferred. It follows that grounds 5 and 6 must be rejected.
The costs appeal (CACV 121 of 2008) - introduction
261 The costs orders that are the subject of the second appeal were made in the main action. In this appeal Noye is the appellant, Robbins is the first respondent and the State of Western Australia is the second respondent.
262 One difference between this appeal and the appeal on the merits is that the parties joined issue on a number of matters of law, as well as on the application of the law to the facts. In the following sections a reference to a paragraph in the reasons for decision will be to the relevant passage from Noye v Robbins (No 6) [2008] WASC 266.
263 Noye commenced the action against Robbins in October 1999. That writ was struck out due to an incurable defect and in November 1999 a fresh writ was issued. In October 1999 Robbins applied to the WAPS for legal support to defend the action, on the basis that the conduct the subject of the proceedings had been carried out in good faith in the course of his duties. The WAPS agreed to pay the costs of Robbins' defence, and advised him to engage a private legal representative. The WAPS indicated, however, that should it be found that the prosecution was malicious, Robbins would be required to refund moneys paid for his legal defence and would be responsible for damages awarded against him. On the understanding that his legal fees would be paid (subject to the condition noted above) Robbins engaged Corsers Barristers & Solicitors (Corsers) to represent him.
264 Between November 1999 and early 2001 Corsers carried out legal work for Robbins' defence. The cost of this legal work, which was approaching $50,000, was paid by the WAPS on behalf of Robbins.
265 In early 2001 Mr O'Sullivan of the Crown Solicitor's Office (as it then was) reviewed the arrangements between Robbins, the police and Corsers. He advised Robbins that the State (the second respondent in this appeal) was not prepared to continue to fund the current arrangement with Corsers. Mr O'Sullivan told Robbins that the State had been having discussions with another firm, Hunt & Humphry, and if Robbins wished to engage Hunt & Humphry the State would fund the engagement in accordance with the Government Guidelines. The Government Guidelines provided, among other things, that the State would meet legal costs incurred in defending an action where the conduct of the officer 'was in good faith and reasonable, and in the discharge of official responsibilities'.
266 Robbins advised Mr O'Sullivan that he was happy to switch to Hunt & Humphry. In May 2001 Robbins terminated his instructions with Corsers. In July 2001, following a series of discussions between Hunt & Humphry and O'Sullivan about the conditions under which the State would fund the defence, Robbins engaged Hunt & Humphry.
267 A letter and costs agreement was sent from Mr McKenna of Hunt & Humphry to Robbins explaining the conditions of the State's funding of the defence. The content of that letter had been the subject of discussion between McKenna and O'Sullivan, and the Crown Solicitor had approved of the letter.
268 The letter began by setting out the basis upon which the costs of the defence would be borne by the State. It said:
The basis of your indemnity is that the State considers that actions against its officers should be defended at its cost provided that:
We are instructed to provide representation to you on the above basis. We are instructed that the State accepts, on information known to it at present, that you were acting in good faith in issuing complaints against [Noye]... However, if it transpires that you were not acting in good faith the payment for such representation may be withdrawn.
On that topic, it is important for us to tell you that in the ordinary course of a solicitor client relationship we would have a duty of confidentiality to you that did [sic] not allow us to impart any information to the Crown Solicitor's Office. Our instructions to represent you are, however, conditional upon you irrevocably authorising us to provide to the Crown Solicitor's Office, such information as we consider necessary or appropriate form [sic] time to time for the purpose of:
269 The author went on to explain that Robbins would be liable for costs incurred in defending the action. The letter said:
The State is indemnifying you for costs in accordance with the policy stated above. Accordingly, it is you who will be engaging us and who is primarily liable for our fees.
270 The letter also anticipated that an order for costs may be made for or against Robbins. It stated:
Costs orders may be made in the proceedings. If the costs orders are in your favour we may be able to recover funds from ... [Noye]. Any money so recovered would be payable by you to the State in part reimbursement of funds he [sic] has expended in your defence. A costs order against you will be met by the State, provided that the conditions as to your indemnity set out above continue to be met.
271 Finally, the letter indicated that Hunt & Humphry was being engaged by Robbins, not the State. The author said: 'You are our client. Accordingly, we take instructions from you.' The letter continued:
However, the Crown Solicitor is in a position of a kind of co-client and has the right to decide whether a course of action that you authorise us to take is or is not reasonable. That is, the Crown Solicitor can direct us to take particular action on any aspect of this matter.
If your instructions and those of the Crown Solicitor conflict you may direct us to not to take such an action and appoint replacement solicitors at your own expense. Otherwise, you accept and agree that any instruction given to us by the Crown Solicitor (either directly or through a solicitor in his office) is a proper instruction with which you concur.
272 Robbins signed and returned the letter to Hunt & Humphry. In May 2002 Robbins received another letter regarding the funding arrangements of his defence. This time the letter came from the Police Legal Services Unit. The letter stated that Cabinet had approved the making of an ex gratia payment to cover the fees payable to Corsers and to continue upfront payments towards his defence (subject to oversight by the Crown Solicitor). As it happened, that letter was incorrect. Cabinet approval had not then been obtained.
273 Nevertheless, the letter once again set out the conditions upon which the funding of the defence would be made. The letter said:
Cabinet's approval was based on an assessment in the presently known circumstances of whether your conduct the subject of these proceedings was in good faith, reasonable and in the official discharge of your duties ... The following general conditions continue to apply to that approval:
274 The letter emphasised that it was Robbins who was ultimately responsible for the costs of the defence. It said:
It is important for you to appreciate that you ultimately remain legally responsible to your solicitors and counsel for costs incurred by you in engaging their legal services. To the extent that approval has been granted to pay your reasonable legal costs, subject to the above conditions, those costs will continue either to be reimbursed once paid by you, or, if considered to be appropriate, paid directly to your solicitors.
275 Finally, the letter noted that Cabinet had not approved the payment of any costs or damages that might be awarded against Robbins. According to the letter:
You should also be aware that the present Cabinet approval does not extend to any liabilities that may be incurred by you in the course of the litigation such as any orders that you pay the [appellant's] costs or any damages awarded against you ... Any such application [for support in paying damages or costs] would ordinarily be made at the conclusion of the litigation to enable a fully informed assessment to be made of whether your conduct the subject of these proceedings was in good faith, reasonable and in the official discharge of your duties.
276 In May 2004 Cabinet approval was obtained for the funding of Robbins' defence (notwithstanding the letter written two years earlier stating that approval had already been obtained). The Cabinet Minute stated:
Pursuant to the Government Guidelines ... [Cabinet] approves the making of an ex gratia payment of $58,824.53 to Corsers and $47,258.85 to Hunt & Humphry on behalf of [Robbins] so as to fully satisfy the payment of legal costs incurred by [Robbins] in his ongoing defence of an action for malicious prosecution brought by the [appellant] ...
In addition, [Cabinet] approves the continued payment of [Robbins'] legal costs that are subject to scrutiny and satisfaction of the State Solicitor's Office.
277 At trial Robbins was represented by McKenna of Hunt & Humphry. In dismissing the case against Robbins his Honour made a specific finding that Robbins had not acted maliciously in bringing charges against Noye.
278 Having succeeded at trial, Robbins applied for costs against the appellant. When it became clear that there was a funding arrangement between Robbins, Robbins' solicitors and the State, the trial judge granted the State liberty to apply to be joined in the proceedings for the purposes of the application. The State then applied (successfully) to be joined as a party to the proceedings.
279 The central issue before the trial judge was whether Robbins could recover costs against the appellant, his legal costs already having been paid by the State.
280 His Honour began his judgment by outlining the procedural history of the application for costs.
281 He then summarised the key argument raised by Noye [10]:
Essentially, the propositions advanced for [Noye], in opposition to any order for costs, proceed on the basis that because Inspector Robbins has not in fact paid any costs, nor is liable to pay moneys paid by the State to his solicitors for his costs, he has suffered no loss for which any indemnity to be provided by an order for costs is necessary. In this regard, the submissions for [Noye] maintain that, notwithstanding that he had a personal contractual liability to pay to his solicitors the costs which were properly rendered by them for his representation in these proceedings, the fact that that liability has been discharged by the State, without recourse to him, means that he has suffered no loss and requires no indemnity.
282 His Honour set out in some detail the law relating to the recovery of costs, the indemnity principle, subrogation and restitution. He also examined the relationship between Robbins and the State and concluded that the funding arrangements constituted a contract. According to his Honour [41]:
I consider that the present arrangements amount to an agreement by the State to pay money for the benefit, that is to the use of, the first defendant, Inspector Robbins, under terms which would permit the State to terminate the funding and to seek to recover from Robbins payments already made in the event that the State were advised that there was reason to conclude that the first defendant no longer deserved to have this support continued or to retain the benefits of the support which had to that point been given ... To the extent that consideration moving from Robbins is necessary to support the existence of the contract, it may be found in Robbins submitting to the control and supervision of his defence of the action by the State Solicitor and by disclosure to the State Solicitor of information and advice by his own legal representatives which would otherwise be confidential.
283 The trial judge distinguished the situation in the instant case from that of a volunteer making a gratuitous payment towards a litigant's legal fees. He said [97]:
While it is true that there are no comprehensive terms in the contractual arrangements between the State and Inspector Robbins dealing with the situation which has presently arisen, it is clear that the arrangement was not entirely gratuitous and that the State was not a mere volunteer. The arrangements for repayment or cessation of advances in certain circumstances, none of which arose, all have the clearest implication that the payments made by the State, so long as the assumptions about the propriety of Inspector Robbins' conduct were not displaced, were in the advancement of a common interest of the State and of Robbins, namely of allowing for a proper legal defence of police officers sued for matters arising out of the performance of their official duties.
284 His Honour then went on to find that Robbins could recover costs on alternative grounds: under a contract of indemnity and under general restitutionary principles. In relation to the contractual indemnity basis, his Honour said [98]:
Accepting, as I do, the evidence of Mr McKenna in his affidavit to the effect that he orally conveyed to Inspector Robbins, and the latter accepted, the explanation provided by Mr O'Sullivan of the State Solicitor's Office that costs would be payable to the State in the event of a successful outcome, then indeed there is a contractual basis for a relationship of indemnity so that, in accordance with the authorities discussed, there is a clear entitlement for Robbins to obtain a party and party costs order even though that would, in practical terms, be almost entirely for the benefit of the State.
285 In relation to recovery based on the principles of restitution, the trial judge said [98] - [99]:
However, even if it were not sufficiently clear that there was an express or implied term in the arrangement between Inspector Robbins and the State, negotiated via Mr McKenna, that in the eventuality which has happened Inspector Robbins would be expected to repay to the State so much of the costs paid to his solicitors as he could recover on a party and party order for taxed costs against Noye, the situation is nevertheless plain that Robbins always accepted the benefit of the payments to his solicitors made by the State. He was willing to accept the imposition of all the terms stipulated by the State in relation to the payments, and ratified the payments as discharging his personal liability to his solicitors for costs as they were progressively rendered during the retainer.
That is sufficient to give rise to an entitlement to a restitutionary claim by the State and demonstrates that the advances made by the State to Inspector Robbins' solicitors were not voluntary or gratuitous in any sense which would deprive Inspector Robbins of an entitlement to an order for party and party costs.
286 His Honour then dealt briefly with the respondents' primary submission, which was that Robbins was entitled to costs purely on the basis of the indemnity principle. He said [100]:
I appreciate that the extent of this analysis [in relation to a contractual indemnity and restitution] goes further than the State's primary submission about what is necessary to recognise an entitlement by Inspector Robbins to an order for taxed costs based on no more than the principle in Adams v London Improved Motor Coach Builders Ltd. Nevertheless, I prefer to take the approach to Adams' case adopted by French J in Angor Pty Ltd v Ilich Motor Co that notwithstanding that there once was a liability by the client to pay his solicitors' costs, if that liability has been discharged by a third person, then the entitlement by the client to an order for party and party costs would depend on the continuation of some potential by the party to meet that liability to the solicitors, even if only remote, or indirectly when there is a potential liability to the party making the payment under some form of restitutionary claim.
287 His Honour granted Robbins an unconditional costs order against the appellant.
289 Ground 1 alleges an error of law in concluding that there was a contractual arrangement or agreement between Robbins and the State in relation to the State's discharge of Robbins' legal costs of the action. Noye contends that the materials which evidenced the arrangement disclosed no intention to create legal relations between the respondents.
290 In the second ground, Noye alleges an error of law or fact in relying on inadmissible expressions of opinions that were not capable of providing any or sufficient evidentiary basis for a relevant conclusion at [98] that 'costs would be payable to the State in the event of a successful outcome' or that Robbins was obliged to seek the recovery of costs paid and repay them to the State.
291 At [98] and [99] the trial judge found that the State had an entitlement to a restitutionary claim. In ground 3 Noye contends that this involved an error of law because the trial judge had failed to provide adequate reasons as to how the evidence established Robbins' acceptance of the (existing and established) terms in relation to the State's actual payment of his costs. Ground 3 also alleges an error in failing to provide adequate reasons for concluding that there was a 'contractual basis for a relationship of indemnity'. Finally, Noye contends that the finding that payments by the State were not voluntary or ex gratia is wrong. The evidence neither supported the existence of such a contractual basis for an obligation of indemnity nor the express or implied terms advanced in support of the finding.
292 In ground 4 Noye points to the trial judge's finding at [100] concerning the legal principles arising from the authorities. Noye contends that the trial judge erred in law by misapplying or failing to correctly apply Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 and Angor Pty Ltd v Ilich Motor Co [1992] FCA 348; (1992) 37 FCR 65 to the facts of this case in that both Adams and Angor were distinguishable.
293 The State advanced a single ground of contention; namely:
The decision of the judge to order that the appellant pay [Robbins'] costs ought be upheld, in any event, on the ground that, a liability to legal costs having been incurred by [Robbins], [Robbins] was entitled to an order for costs irrespective of any arrangements by which that liability may have been satisfied, alternatively, in circumstances where [Robbins] had undertaken to reimburse any funds recovered from the appellant to the second respondent.
294 As is evident from the grounds of appeal, many issues are agitated. I do not propose to deal with all, or even most, of those issues. For the reasons that follow, this appeal may be disposed of by reference only to ground 4 of the appeal and the single ground of contention.
295 In ground 4 Noye complains that the trial judge misapplied the indemnity principle as propounded in Adams v London Improved Motor Coach Builders Ltd and Angor Pty Ltd v Ilich Motor Co. The State, in its notice of contention, argues that the primary decision could be upheld purely on the basis of the indemnity principle. As might be expected, this point occupied most of the argument in the oral hearing.
296 The indemnity principle, at its simplest, provides that a party who does not have a liability to his solicitor for costs cannot recover costs against the unsuccessful party to the litigation. The rationale underlying this rule was expressed by Bramwell B in Harold v Smith [1860] EngR 516; (1860) 5 H & N 381 [385]; [1860] EngR 516; 157 ER 1229, 1231 as follows:
Costs as between party and party are given by the law as an indemnity to the person entitled to them: they are not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them. Therefore, if the extent of the damnification can be found out, the extent to which costs ought to be allowed is also ascertained [385].
297 The operation of the indemnity principle means that when a party and his solicitor have an agreement that the party will not have to pay the solicitor's costs, that party cannot obtain an award of costs against the unsuccessful party: Gundry v Sainsbury [1910] UKLawRpKQB 32; [1910] 1 KB 645. Similarly, where a solicitor cannot recover legal fees from his client (for example, because the solicitor does not hold a practising certificate in the relevant jurisdiction), the client cannot recover costs against the unsuccessful party: TNT Bulkships Ltd v Hopkins (1989) 65 NTR 1. Further, when the liability of a party to his solicitor is limited, the amount of costs that can be recovered from the unsuccessful party is also limited to that amount: Tarry v Pryce (No 2) [1987] NTSC 59; (1987) 88 FLR 270.
298 The indemnity principle does not mean, however, that a party cannot recover costs merely because he may be relieved from the obligation of paying his solicitor's costs. In Adams the plaintiff successfully brought an action against his employer for wrongful dismissal. The plaintiff was a member of a trade union which provided, among other benefits, legal aid for members in connection with their employment. The union had decided to grant the plaintiff legal aid and instructed a firm of solicitors, who were the general solicitors to the union, to act for him. The plaintiff gave no written retainer to the solicitors but there was no agreement with the solicitors that the plaintiff would not be liable to them for costs. The court held that the plaintiff was entitled to recover costs. According to Bankes LJ (501):
When once it is established that the solicitors were acting for the plaintiff with his knowledge and assent, it seems to me that he became liable to his solicitors for costs, and that liability would not be excluded merely because the Union also undertook to pay the costs. It is necessary to go a step further and prove that there was a bargain, either between the Union and the solicitors, or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs.
299 This case illustrates that a successful party can recover costs if he has an obligation to pay his solicitors, notwithstanding the fact that a third party might (and in all probability will) relieve him of that obligation.
300 Adams has been followed in Australia in several cases. In Backhouse v Judd [1925] SAStRp 49; [1925] SASR 395 the respondent, an inspector for the Society for the Prevention of Cruelty to Animals, laid a complaint against the appellant and initiated proceedings against him in the Police Court. The Society undertook to pay the respondent's legal costs, but there was no express agreement between the respondent and his solicitor that the respondent would not be liable to the solicitor for costs. The appellant was convicted of an offence and the question arose as to whether the respondent could recover costs against the appellant.
301 The court, applying Adams, found that the respondent was entitled to costs. In delivering his reasons Angas Parsons J said (401):
There is nothing in the evidence that I can find which shews it was ever contemplated or considered that in no event should [the respondent] be liable to his solicitor.
302 His Honour likened the situation in the present case to the situation in which a police officer lays a complaint and is represented by a lawyer briefed by the Crown, saying (402 ‑ 403):
In such a case, although the police officer accepts the services of such counsel, and would not contemplate that in any event he would be left to pay the costs, yet the proper inference to be drawn is that liability therefor, in the absence of a bargain to the contrary, is not to be taken to be negatived, and in every-day practice such an informant may be awarded costs if successful.
303 As there was no express agreement between the solicitor and the respondent that the respondent was not liable to the solicitor for costs, the respondent was entitled to an award of costs.
304 In Angor Pty Ltd the successful applicant in a damages claim was wound up. The respondent resisted an award of costs to the applicant on the basis that the applicant's solicitors were unsecured creditors in the winding up and their claim was subject to the priorities of secured creditors. It was said that the provisions of the Corporations Law relating to winding up deprived the solicitors of the right to recover that debt and instead gave them merely a right to prove in the liquidation and receive a rateable proportion of any dividend.
305 French J found that the applicant could recover costs against the respondent, notwithstanding the fact that its solicitors were unsecured creditors in its liquidation. In his discussion of the indemnity principle, his Honour concluded that (72):
[T]he decision in Adams is clear authority for the proposition that the indemnity principle will permit recovery of costs by a successful party who is under a legal liability to his solicitors to pay them even though the likelihood of being called upon to do so is remote.
306 His Honour observed that the liquidation did not extinguish the applicant's debt to the solicitors, saying (72-73):
In this case it was conceded by counsel for [the respondent] that the debt owed by [the appellant] to its solicitors was not extinguished upon the winding‑up of [the appellant]. In my opinion that was a correct concession. What was affected by the winding up order was the solicitors' right to recover their costs against [the appellant]. Depending upon the circumstances of the company, the Companies Code would permit full recovery or none or something between those extremes. What is proved in the liquidation is the existence of the liability. The statutory mechanism for the rateable distribution of the company's assets does not affect that.
307 The court therefore allowed the applicant's claim for costs on the basis that it owed a debt to its solicitors, even though the chance of the solicitors recovering that debt may have been remote.
308 Adams has been applied in several other Australian cases, including Johnson v Santa Teresa Housing Association [1992] NTSC 29; (1992) 83 NTR 14; Wilson v Richmond River Shire Council [2000] NSWSC 71; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 2) [2003] VSC 212; and Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2008] NSWSC 114.
Operation of the indemnity principle when liability already discharged
309 If the State had not yet paid Robbins' legal costs there would be little difficulty in applying Adams to the present case. The funding arrangement between Robbins and his solicitors expressly stated that he would ultimately be responsible for the payment of their fees. Further, the State reserved the right to suspend or 'claw back' payments made to the solicitors on behalf of Robbins if there was a finding of bad faith or malice in the prosecution. If the solicitors had not yet been paid or a finding of malice had been made, Robbins would clearly have had a liability to his solicitors, regardless of the likelihood of that liability being enforced against him. In such circumstances, a simple application of Adams would lead to an order for costs in Robbins' favour if, despite the finding of malice, Noye's claim failed.
310 The difficulty in this case is that the State has already paid Robbins' legal costs: see [46]. Further, the trial judge did not find any bad faith or malice on the part of Robbins. The real point to be determined under this ground is: does the discharge of a successful party's liability to his solicitors by a third party before an order for costs is made disentitle that successful party to an order for costs? Put another way, does Adams apply (and if so, in what way) when the successful party's (remote) liability is extinguished before costs are awarded by the court?
311 In his reasons, the trial judge took the view that Adams required that the successful party face some ongoing liability. He said [100]:
I prefer to take the approach to Adams' case adopted by French J in Angor Pty Ltd v Ilich Motor Co that notwithstanding that there once was a liability by the client to pay his solicitors' costs, if that liability has been discharged by a third person, then the entitlement by the client to an order for party and party costs would depend on the continuation of some potential by the party to meet that liability to the solicitors, even if only remote, or indirectly when there is a potential liability to the party making the payment under some form of restitutionary claim.
312 The second respondent, in its notice of contention, disputes that conclusion. It argues that Robbins can recover costs under the principle in Adams, even though its liability has already been discharged.
313 I prefer the view that, even if the liability has been discharged prior to the award of costs, a successful party can still recover costs under the principle in Adams. There are three reasons which lead me to this conclusion. First, the authorities do not, as a matter of principle, appear to differentiate between situations in which the liability exists and has not been discharged and those in which the liability existed but has now been discharged. Secondly, in several cases a successful party has been permitted to recover costs under the Adams principle even though their liability had already been discharged by a third party. The third reason is that the indemnity principle is a flexible principle designed to allow for a just and fair result. In my view, in this instance fairness dictates that Robbins should be allowed to recover his costs.
314 An examination of the authorities reveals that they do not appear to differentiate between a liability to pay a solicitor which is outstanding and a liability to pay a solicitor that has been discharged prior to an order for costs.
315 In Adams, the court ruled that the plaintiff could recover costs unless the defendant could show that the solicitors were not acting for the plaintiff or there was a bargain which prevented the solicitors from recovering costs against the plaintiff. In relation to the second possibility, what was relevant was the terms of the agreement between the plaintiff and his solicitors, not the fact of whether the union had discharged any liability faced by the plaintiff. In other words, once it was established that there was no agreement that the plaintiff would not be liable to pay the solicitors' fees, it was not necessary to go on to determine whether in fact those fees had been paid by the union. It is the creation of a liability to pay the solicitors' fees, not the existence of an ongoing undischarged liability, which gives rise to the entitlement to recover costs.
316 Such a point is apparent from the judgment of Bankes LJ, who said (500):
I arrive at my opinion by these steps: First, who engaged the solicitors? The answer is the Union. Next, for whom did the Union engage the solicitors to act? As solicitors for the union or as solicitors for the plaintiff? It seems to me to be impossible on the facts to come to any other conclusion than that the Union engaged the solicitors to act in the matter as solicitors for the plaintiff ... The next question is, upon what terms were they employed? ... [I]f, as I think it, it is essential for the defendants' case that they should establish that the terms upon which the solicitors were engaged included the term that under no circumstances should they look to the plaintiff, it seems to me that the evidence falls entirely short of what was necessary to establish that case.
It was then suggested that the learned judge ought not to give the plaintiff his costs because it was said that he was under no liability to the solicitors in the action to pay those costs. In order to make good that contention, the plaintiff must show either that there was no employment by him of the solicitors in the action, so that they were not his solicitors, or that, if there was such an employment, he had made a binding agreement with them, express or implied, that he was not to pay any costs.
318 As these passages show, it was essential to the defendant's case that it show that there was an agreement that prevented the solicitors from looking to the plaintiff for their fees. There was no enquiry into whether the fees had actually been paid or were outstanding.
319 In Backhouse v Judd, another important case which I mentioned earlier, the central issue for the court was whether there was an agreement that the inspector should not be liable in any circumstances to pay his solicitor and counsel. There was no investigation of whether the fees had in fact been paid by the Society. Napier J said (403 ‑ 404):
[T]he respondent allowed Mr Abbott to act for him as his solicitor in relation to the appeal, and accepted the benefit of Mr Abbott's services. Unless there was a bargain to the contrary, that would imply an obligation on the part of the respondent to pay the ordinary professional charges ... We are not really concerned to inquire what view a jury would take of this evidence if the onus were upon Mr Abbott to satisfy them that the respondent had incurred responsibility to him ... [I]n these proceedings the appellant is required to negative responsibility by proving what is called in Adams's Case [1921] 1 KB 495 an express bargain or arrangement to that effect.
320 These cases illustrate that the availability of costs depends on whether there is any bargain made between the party and the solicitor which prevents the recovery of fees. No mention is made of whether those fees have, in fact, been paid by a third party. The only authority which is arguably to the contrary is Angor, in which French J said (72):
[T]he decision in Adams is clear authority for the proposition that the indemnity principle will permit recovery of costs by a successful party who is under a legal liability to his solicitors to pay them even though the likelihood of being called upon to do so is remote. [emphasis added]
321 This would seem to indicate that Adams requires that the party be under a liability to pay its solicitors at the time a costs order is made. I do not think that the proposition for which Adams stands is so narrow. It must be remembered that his Honour was applying Adams to the facts before him, and in that case it was clear that the solicitors' liability had not been discharged. Indeed, shortly after the passage I have cited above, French J continued (72):
It is not necessary for present purposes to explore the question whether a successful party's liability to pay its solicitors' costs is a necessary condition of its ability to recover costs against the other side. In this case it was conceded by counsel for [the respondent] that the debt owed by [the appellant] to its solicitors was not extinguished upon the winding up of [the appellant].
322 For these reasons, the indemnity principle as formulated in Adams does not require that the successful party have an outstanding liability to his solicitor, but that there was no agreement between the party and solicitor that the liability could not be recovered from the party.
323 A number of earlier cases have allowed successful parties to recover costs under the indemnity principle, even though their legal fees had already been paid by a third party.
324 In Wilson v Richmond River Shire Council [2000] NSWSC 71, Wilson brought proceedings against several parties, including Richmond River Shire Council, and retained a solicitor to represent him. The New South Wales Aboriginal Land Council agreed to pay the solicitor's fees on behalf of Wilson, and did in fact pay those fees. Wilson was successful and sought costs against the Council. The costs assessor refused to make an award of costs on the basis that Wilson's liability to his solicitor had been discharged by the Council. On appeal the court held that Wilson was entitled to recover his costs under the indemnity principle [15]:
It is my view that there was no agreement between the plaintiff and his solicitor that in no circumstances was he (the plaintiff) liable to pay the costs. In the absence of evidence of a bargain to that effect, the plaintiff became liable to his solicitor for costs and this liability is not excluded because the New South Wales Aboriginal Land Counsel [sic] undertook to pay his fees. Mr Wilson was the person giving instructions to the solicitor. The solicitor was acting with the plaintiff's knowledge and assent. Thus the plaintiff was liable to pay his solicitor's costs and the fact that the New South Wales Aboriginal Land Council indemnified the plaintiff does not prevent him from recovering his costs.
325 The indemnity principle was found to operate even though Wilson's solicitor had already been paid.
326 In Coshott v Woollahra Municipal Council [2008] NSWCA 176, Coshott appealed against a decision ordering him to pay the Council's legal costs in the District Court. The Council had paid its solicitors part of its legal fees but the remainder of the legal fees had been paid by Premsure, a mutual indemnity scheme maintained by a number of councils.
327 Coshott argued that under the indemnity principle he could not be ordered to pay the legal fees to the Council's solicitors that had already been paid by Premsure. He also argued Premsure was not an insurer and had no right of subrogation. The court rejected the argument that the Council could not recover under the indemnity principle costs in relation to fees paid by Premsure. According to Handley AJA [11]:
The contractual arrangements between the members, by way of indemnity, may have been in the nature of insurance. But whether or not this was so is not critical. Its payments reduced the prima facie liability of the Council to pay that amount to its solicitors: Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 CA, 501. A litigant, liable to its own solicitor for the costs of proceedings, who is indemnified in whole or in part for those costs, is entitled to recover his taxed or assessed costs for the benefit, in whole or in part, of the party providing that indemnity: Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 CA. The principle extends to all indemnity arrangements whether or not they are in the nature of insurance.
328 The fact that Premsure had already discharged part of the solicitors' fees did not prevent the Council from receiving costs in relation to those fees.
329 Lewis v Averay (No 2) [1973] 1 WLR 510 concerned an application for costs to be paid out of the legal aid fund. Nonetheless, it seems to me that its treatment of the indemnity principle is applicable to costs orders generally. Averay had succeeded on appeal in overturning a first instance decision awarding Lewis damages for the detention of a car. The legal fees of Averay's appeal had been paid by the Automobile Association, of which he was a member. As Lewis had no money to pay costs, Averay made an application to the legal aid fund to pay his costs. One of the issues was whether Averay's legal fees were 'costs incurred by him'. Lord Denning MR found that the legal fees were incurred by Averay, saying (513):
[Mr Hames] suggests that in this case the costs were not incurred by Mr Averay, but were incurred by the Automobile Association; because the Automobile Association undertook the appeal and instructed their solicitors and paid them. I cannot accept this suggestion. It is clear that Mr Averay was in law the party to the appeal. He was the person responsible for the costs. If the appeal had failed, he would be the person ordered to pay the costs. If the costs had not been paid, execution would be levied against him and not against the Automobile Association. The truth is that the costs were incurred by Mr Averay, but the Automobile Association indemnify him against the costs.
330 It is clear that the test adopted by his Lordship was the same as the test used when applying the indemnity principle: who has the legal obligation to pay the solicitors' fees? There is no indication that his Lordship was troubled by the fact that the Automobile Association had already paid the fees, and that Averay no longer faced any liability to his solicitors. His Lordship said (514):
In the circumstances of this case it seems to me entirely just and equitable that Mr Averay should have an order for his costs to be paid out of the legal aid fund, even though they were borne in the first instance by the Automobile Association. He can then reimburse the Automobile Association.
331 These cases demonstrate that the courts have not declined to award costs under the indemnity principle simply on the basis that the successful party's solicitors' fees have already been paid by a third party.
332 The third reason that Robbins should be allowed to recover his costs despite his fees already being paid is that the indemnity principle is flexible, and is designed to allow for a just and fair result.
333 The flexibility of the indemnity principle is discussed in a number of cases. In Lenthall v Hillson [1933] SAStRp 13; [1933] SASR 31 Angas Parsons and Napier JJ said (36):
We think that the principle that costs are given as an indemnity can be carried too far. It comes from the unwritten law, and depends upon considerations of public policy and convenience, and it follows that it must be reasonably understood and applied.
334 This passage was cited with approval by McColl JA in Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 [80]. The flexibility of the indemnity principle was also recognised in Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474, in which Santow JA said [45] ‑ [50]:
The indemnity principle is long-established at general law. It is however not to be applied rigidly, or uninfluenced by statute or by practice recognised by statute, such as in relation to conditional fee agreements ... [T]he indemnity principle is not immutable, and should be applied flexibly rather than made into a rigid rule, as the examples given by Basten JA demonstrate. This was said as long ago as 1902 by Walker J in New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co [1902] NSWStRp 4; (1902) 2 SR (NSW) 50; 19 WN (NSW) 9. It has been frequently affirmed since, most recently by the Court of Appeal in Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203.
335 In this case, only an unduly narrow and artificial application of the indemnity principle would deny Robbins his costs. Noye sued Robbins for damages. Robbins incurred legal fees in defending the action. Those fees were paid by the State. The State paid Robbins' fees as part of its policy of providing legal assistance to (among others) police officers being sued in their capacity as officers of the State for actions carried out in good faith in the fulfilment of their duties. Noye lost his case. He now seeks to rely on the indemnity principle to negate an obligation that would otherwise arise in relation to those costs.
336 This is not a case in which the successful party will receive a bonus. Robbins has given an undertaking to pay any costs awarded to the State. If costs are awarded, Robbins will be essentially unaffected and the State will merely receive a partial indemnity in respect of the costs of Robbins' defence.
337 An examination of the consequences of different courses of action the State might have taken lends weight to the argument that Robbins' costs should be recoverable. If the State had provided Robbins with representation through the State Solicitor, Robbins would have been entitled to recover costs: Inglis v Moore (No 2) (1979) 25 ALR 453; 46 FLR 470. If the State had taken the same approach as it did in this case but had not yet paid the legal fees, Robbins would have been entitled to recover costs.
338 In my view it would be unfair and unjust to prevent Robbins from recovering costs for the State's benefit. It would be an inflexible application of the indemnity principle to bring about such a result.
339 This appeal was heard on 15 to 17 March 2009. There has been a long and unacceptable delay in handing down this judgment and the inconvenience to the parties is sincerely regretted. The fault for the delay lies entirely with me and no blame should be attributed to the other members of the coram or the Court generally. The delay was contributed to by my absences from the Court from time to time following an accident
in May 2009 and by the need to come to grips with the significant amount of detail relevant to the broad range of issues raised.
340 In my view there is no merit in any of the grounds of appeal and I would dismiss the appeal. I would also reject the notice of contention.
341 These conclusions make it unnecessary to deal with Robbins' application to strike out certain of the grounds of appeal, or more accurately, those grounds and particulars that raise the 'pressure' question.
342 In my view Robbins was entitled to recover costs from the appellant on the basis of the principle in Adams. Such a finding is sufficient to dispose of the appeal in favour of the respondents. It is therefore unnecessary for me to deal with grounds 1, 2 and 3 of the appeal. The appeal should be dismissed.
343 PULLIN JA: The appellant alleged that the prosecutions against him instituted on 11 November 1993 (the Petty Sessions charges) and 14 February 1994 (the other charges) were instituted without reasonable and probable cause, and that the respondent was motivated by malice. In the course of his Honour's reasons, the trial judge found that, considered from an objective point of view, there was no reasonable or probable cause for commencing the prosecutions on the two relevant dates. However, the trial judge found that the prosecutions were not motivated by malice. As a result, the trial judge ordered the dismissal of the appellant's claim. The appellant appeals against that judgment in CACV 85 of 2007.
344 The finding that there was no reasonable and probable cause is challenged by ground 1 of the notice of contention in order to provide additional support for the judgment. The details of the evidence and the findings of the trial judge are set out in Owen JA's reasons.
345 The trial judge ordered that the appellant pay the respondent's costs. That order is the subject of a separate appeal by the appellant in which the State of Western Australia is a respondent. That appeal is CACV 121 of 2008.
346 It is appropriate to begin by addressing ground 1 in the notice of contention.
347 The respondent challenges the conclusion that there was no reasonable and probable cause because the learned trial judge held at [679] that there was no evidence concerning exactly what evidence existed at the time the charges were laid. The respondent submits that if there was no such evidence then the challenged conclusion cannot be supported.
348 The respondent gave evidence that he could not remember all of the material that he had available when the charges were laid. This is not surprising given that the events occurred in 1993; that the proceedings were then not instituted until nearly six years later in 1999; and that the trial was in 2005. The onus is on the plaintiff alleging malicious prosecution to prove what the evidence was and then to show that, based on that evidence, there was no reasonable and probable cause: see Mitchell v John Heine & Son Ltd [1938] NSWStRp 33; (1938) 38 SR (NSW) 466, 470. If it is not possible to prove what the evidence was, then that is a problem for the plaintiff and not for the defendant. It is not for the defendant to justify the charge. It is for the plaintiff to prove the negative.
349 Paragraph [36] of the reasons reveals that no formal brief or proofs of evidence were prepared or available when advice was taken by the respondent from the DPP. The advice was by word of mouth and based on oral briefings. Precisely what advice was given was not proven. All that his Honour could say [36] was that he had no hesitation in concluding that the briefings were extremely adverse towards the appellant. The advice the DPP gave was taken by the respondent before the charges were laid against the appellant.
350 The appellant attempted to answer the respondent's submission by submitting that an inference could be drawn from other evidence before the court that there was no reasonable and probable cause. The appellant pointed to the prosecution brief prepared by the DPP in support of the charges in the indictments. This was prepared after the charges were laid. The appellant submitted that this reveals no reasonable and probable cause for a prosecution. However, that submission ignores the trial judge's finding [679] that '[t]here is no evidence in this case of the precise information, let alone the content of any brief, which was put to the officers of the DPP when advising Inspector Robbins about whether or not the circumstances justified the laying of charges against Noye'. It is implicit in the submission that the court should conclude that the respondent was not speaking the truth when he said that he could not remember what information was available. The appellant's submission requires an assumption to be made that what was in the later prosecution brief is necessarily what was available as evidence to the respondent when the charges were laid. But to make that submission is to challenge the trial judge's finding that there was no evidence of the precise information available when charges were laid. In effect it also challenges the judge's conclusion that he believed the respondent's evidence. There are no grounds of appeal to that effect. The trial judge's conclusion that there was no such evidence should have led the trial judge to conclude that the appellant could not succeed in proving that there was no reasonable or probable cause.
351 In any event, no attempt was made by the appellant to take the court to the written prosecution brief to point out what might support its submission. In fact, the prosecution brief was not provided to the Court of Appeal. In view of the trial judge's finding [679], the conclusion that there was no reasonable or probable cause was an error. Ground 1 of the notice of contention must therefore be upheld.
352 The first ground alleges that the trial judge erred in concluding that the respondent was not motivated by malice. The respondent applied to strike out part of this ground (par 2.2). This particular asserted that the respondent was under pressure to lay charges and that the respondent charged the appellant to alleviate the pressure.
353 To understand the issues in relation to this ground, and in particular to understand the strike‑out application which was made by the respondent, it is necessary to consider the pleadings. The statement of claim alleged in pars 18 and 19 that the respondent was actuated by malice in relation to the Petty Sessions charges in that:
(a) the respondent had 'no honest belief in the plaintiff's guilt and malice is to be inferred from that fact';
(b) the respondent had 'no honest belief in the truth of the evidence of the Crimmins', alternatively the [respondent] was reckless in, not caring whether Lynette Crimmins and Barry Crimmins' evidence was true or false and malice is to be inferred from those facts'; and alternatively
(c) the respondent prosecuted the appellant to secure career promotion. (This latter allegation was dismissed and is no longer made on this appeal).
354 A new particular of this ground of appeal (the 'pressure' allegation) was raised in the following way. During the course of the trial and at the end of Inspector Robbins' evidence, the learned trial judge asked some questions. The questioning began at ts 1790 after counsel for the respondent had indicated that he had completed his re‑examination. The questions from the trial judge continued for several pages and at ts 1801 his Honour said:
Well, superintendent, don't take me the wrong way but the situation appears, on one view, that at that point the police badly needed a scalp and who better to scalp than Mr Noye?
355 The respondent said that this was definitely not his approach and that in his view at the end of 1992, the police were not looking for a scalp, they were looking for a 'closure on the matter'. He said that:
[W]hen it broke in 93? I don't know that I was - I can tell you for sure that I was never ever put under any pressure to come up with an arrest or a result on this other than what my inquiries diligently discovered. We take these matters seriously and objectively and right at the outset I was grateful of the services of Mr Tannin arriving when he did because one thing that we always did in serious internal affairs matters was give full visibility of what we were doing to the DPP. We were very mindful of the fact that, yes, there was an allegation that any arrest - in fact, in any major crime, not simply in this Argyle one but in major crime, Claremont serial killer anything - can be very convenient. There's always two ways of completing an inquiry. One is an arrest and the other one is what is actually harder to do, and that is describe to people why you're not making an arrest. So I'm very mindful of that. I was prepared at all stages to proceed with this objectively. I made sure I did.
356 Counsel for the appellant did not seek to cross‑examine the respondent in relation to the judge's questions. There were no other questions of other witnesses that the respondent was put under any pressure by any of his superiors.
357 The question asked by the trial judge was taken up by counsel for the appellant in closing submissions and objected to by counsel for the respondent. The question by the trial judge was then elevated into an issue by the trial judge in his reasons. His Honour said [692]:
The second basis for malice, in the sense of acting for an improper purpose, as it developed at trial, was that he was acting to find a scapegoat, in the person of Noye, and thus avoid more extensive embarrassment and humiliation of the Police Force, in what had turned out to be a disastrously misguided and inadequate investigation of the diamond thefts from the Argyle mine.
358 His Honour said [694] that the first basis for alleging malice, that is, self‑advancement or promotion, had to be rejected 'absolutely' and that [695]:
On the question whether or not there was malice in the sense of pursuit of an improper motive of making Noye a scapegoat for the general deficiencies of the Police Force, I am satisfied that Inspector Robbins was not actuated by any such motive.
359 The appellant seizes upon this finding and challenges it. In ground 1, par 2.2 the appellant alleges that the trial judge should have found that the prosecution of the appellant was actuated by malice in that 'the sole, alternatively, dominant purpose of the respondent was to relieve himself from various pressures being brought to bear on him and the Police Service'.
360 The issue was then argued in the appellant's submissions in a way which extends far beyond the trial judge's identification of it at trial. The appellant's submissions at par 56 say that the respondent succumbed to 'various improper pressures and influences'. It was said that the respondent:
(a) was influenced by a 'public climate of concern about the integrity of police operations';
(b) was directly influenced by Deputy Commissioner Ayton who evinced a desire for a result by way of prosecution of a police officer which brought about a successful conclusion which minimised the damage to the police department, then being created in the media;
(c) was influenced and pressured by the leaks to the press by officers Gwilliam and Thoy;
(d) was accused by Lynette Crimmins of being corrupt and was thereby influenced and pressured by her allegations to proceed with criminal charges against the appellant;
(e) was influenced by senior officers of Argyle Diamonds, namely Caulfield and Burton who were running a campaign encouraging the respondent to promptly charge the appellant.
361 It is clear from this recital that this allegation of pressure extends well beyond the one formulated by the trial judge.
362 The question is whether the question should have been considered by the trial judge at all given the lack of pleading on the point. It is well settled that fraud should not be lightly raised as an allegation and if raised, it must be distinctly pleaded. To allege that a person is acting out of malice in bringing a criminal prosecution is to make a very serious allegation against a person in an official position. An allegation as serious as that is one which should be raised and carefully defined before the person has to answer such a charge. In my opinion the respondent was denied procedural fairness in the way the subject was raised. The subject was not an issue between the parties and it is not open to the appellant to allege error in relation to the trial judge's reasoning on a subject which was not in issue between the parties. I would therefore uphold the application to strike out par 2.2, ground 1 and the repetition of that allegation in the other grounds.
363 However, if that conclusion be wrong, and if the issue did properly arise because of the way the trial was conducted, then in my opinion the trial judge did not err in his conclusion that the respondent was not motivated by pressure to lay the charges. The respondent gave evidence that he did not bring the prosecution because of any pressure upon him and that no‑one within the police department brought any pressure upon him. It was never suggested to any other witness that any pressure was brought upon him other than to produce a report with the right result. The mere fact that there was pressure does not lead to the conclusion that a decision was taken by the respondent to prosecute to relieve that pressure. His Honour's conclusion that the respondent was not motivated by any improper motive was a decision made by accepting the respondent's evidence based on a favourable impression of the respondent in the witness box. The favourable impression is referred to by the trial judge [469] ‑ [470]:
From my assessment of Superintendent Robbins during a lengthy period when giving evidence and being cross‑examined, I formed the impression that he was a very honest, reliable and dedicated officer, who clearly possessed a broad perspective of the difficulties of the situation and a realisation of the shortcomings of the procedures which the police had followed [470].
364 At [471], the trial judge referred to the impressive nature of the respondent's evidence, exemplified by the way in which the witness 'unflinchingly acknowledged the serious problems in the service, which he had been trying to address'. There was a reference to his frankness, to his honesty and his recognition of the distrust 'festering' between Thoy and Gwilliam on the one hand and the upper echelons of the police force on the other. His Honour commented [472] that the respondent recognised that Gwilliam and Thoy were not being objective and that they were 'running their own agenda'. His Honour said [475]:
I can well understand how an investigating police officer, such as Inspector Robbins ... might think that in this mass of detail, coming from many sources, there was a network of interconnecting strands and a reinforcement of inferences of improper conduct, which supported the specific allegations made by Lynette Crimmins and by Gwilliam.
365 In the light of those unqualified and favourable observations about Inspector Robbins, his Honour's conclusion that there was no improper succumbing to pressure to find a scapegoat should be accepted. His Honour's decision to accept the respondent's evidence on that point should also be accepted.
366 Thus, if ground 2.2 and its associated paragraphs do remain as a ground of appeal, they should be dismissed. No error has been revealed in his Honour's acceptance of the respondent's denial that he succumbed to pressure.
367 Finally, there was the allegation of malice based on the allegation that the respondent did not have an honest belief that the evidence disclosed a case against the appellant for which he should be charged and tried. The respondent gave evidence that he did believe that the evidence disclosed a case against the appellant. The appellant contends that Lynette Crimmins' evidence was crucial to the respondent's decision to lay the charges and that the respondent had serious reservations about her veracity. It is true that Lynette Crimmins' evidence was crucial. It is also true that the trial judge did not expressly find that the respondent believed Lynette Crimmins' evidence of corruption by the appellant was sufficient to found a charge. Finally, it is also true that the respondent recognised many shortcomings with Lynette Crimmins' evidence and the fact that she would come under attack as a witness. However, it is clear that his Honour was satisfied that the respondent did believe Lynette Crimmins' allegations even though he did not expressly say so because he said [675]:
I am satisfied that all this led Robbins to a genuine and sincere personal belief that Noye had acted corruptly and had combined with Roddan to ensure that the inquiry should be written‑off.
368 The expression 'all this' could only be a reference to the material he had been reviewing in the preceding paragraphs. What was included in that review was a reference to the evidence of Lynette Crimmins, particularly [673] and [674]. At [673] his Honour noted that the Robbins' inquiry had revealed that Lynette Crimmins was correct in her basic allegations about a long‑standing pattern of diamond stealing from Argyle by Barry Crimmins, that there had been a distribution of diamonds by Barry Crimmins first to Roddan and then by her to Roddan and others. That means that his Honour, although he did not expressly say so, but by clear and necessary implication, did find that the respondent believed Lynette Crimmins. He believed this even though, as the trial judge noted [682], he could not take at face value all that was said by Lynette Crimmins. The trial judge said what 'animated Inspector Robbins at the time he laid the charges and throughout the period when they were pending' was his "own view" that the 'evidence warranted putting Noye on trial for the charges proposed' and that in doing so he acted 'honestly for the purposes of bringing a wrongdoer to justice' [682] and that '[i]t was his honest opinion that charges should be laid, as they were' [682].
369 Even when his Honour concluded [690] that in his opinion there was, on an objective basis no reasonable or probable basis on which to lay charges, he found that 'notwithstanding that Inspector Robbins ... believed that there was'.
370 In the face of the findings by his Honour that in fact the respondent believed Lynette Crimmins, and believed that there was a foundation for a charge against Noye, there could be no finding of malice. The trial judge so found and found correctly. The trial judge did not err in reaching this conclusion.
371 The alternative, that the respondent demonstrated 'a reckless indifference to the truth or falsity of each of the charges laid' was found in par 2.3 of the ground of appeal but only faintly relied on by counsel for the appellant on the appeal. There was no justification at all for any such conclusion in the face of his Honour's acceptance of the respondent's evidence. Ground 1 should therefore be dismissed.
372 Ground 2 should be dismissed for the same reasons. It concerned the charge relating to the AFP report. It was alleged that the respondent could not have believed the evidence of Gwilliam because he was hostile to the appellant and lacked objectivity. That ground cannot succeed in the face of his Honour's conclusion that at the time the prosecutions were laid 'Gwilliam's credibility was not seriously impaired or discredited' [714].
373 Ground 3 which concerns the three charges of fraud on the SGIO raise again the question about the veracity of Lynette Crimmins. That point has been dealt with in relation to ground 1.
374 Ground 4 is a rehearsal of some of the same points covered in ground 1 and for those reasons it should also be dismissed.
375 Ground 5 complains about the failure to award aggravated and exemplary damages. Insofar as this ground is based upon the allegation of pressure, this ground should be dismissed. I do not provisionally decide this ground or provisionally assess these damages because the question of an entitlement to aggravated and exemplary damages could only be assessed in the light of relevant findings or provisional findings of relevant fact. No such findings were made by the trial judge. In my opinion it is therefore not possible to anticipate what findings might have been made and then to provisionally assess aggravated and exemplary damages on that basis.
Ground 6 - the finding that the appellant would not have been promoted
376 Ground 6 complains about the trial judge's finding that the appellant would not have been promoted beyond his then rank of Detective Senior
Sergeant. The appellant alleges that this was against the weight of the evidence. The ground alleges that the trial judge did not 'adequately scrutinise' the evidence of Ayton and placed 'undue weight' upon the evidence of Ayton to support his Honour's conclusion. The other particulars amount to no more than a rehearsal of the matters put to the trial judge. His Honour's finding was open on the evidence and it has not been shown that there was any error disclosed in reaching that conclusion. The fact that the appellant disagrees with the conclusion is not sufficient to overturn his Honour's finding.
377 As a result, it is not necessary to deal with ground 2 of the notice of contention.
(a) dismiss the appeal; and
(b) uphold ground 1 of the notice of contention.
380 I do not think it necessary to make orders striking out par 2.2 and its repeat appearances because the appropriate order is to dismiss the appeal.
(1924) 35 CLR 275
(2007) 230 CLR 500
(1992) 37 FCR 65
(1987) 88 FLR 270
(2004) 60 NSWLR 203
(2006) 66 NSWLR 474
(1979) 25 ALR 453
(2003) 214 CLR 118
(1998) 196 CLR 1
(1966) 117 CLR 118
(1968) 119 CLR 118