Sharp v Biggs [1932] HCA 54

Sharp v Biggs [1932] HCA 54 - HCA 1932 case summary — Zoe

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from 6th February to 20th May 1928. In support of his counter- claim Biggs gave evidence substantially to the effect that Sharp was in occupation of six rooms above the shop at 232 Smith Street, Collingwood, from 6th February to 20th May 1928, and that during that period he had from time to time seen Sharp and a boy named Roy Halls removing goods from the upstairs rooms to the basement ; that he had seen them taking goods away at intervals; that a day or so might have passed when he did not see them. An appeal was lodged against this judgment, but was ultimately abandoned. Subsequently to the County Court proceedings Sharp issued an information against Biggs alleging, in substance, that Biggs knowingly and falsely swore that the informant, Sharp, was in occupation of six rooms above the shop at 232 Smith Street, Collingwood, and that he saw Sharp and his assistant taking goods from those rooms three or four times a day to 20th May 1928. They (meaning Sharp and his assistant) may have missed a day or two occasionally in that time. Sharp laid similar informations against two employees of Biggs, which are not material to this appeal. Upon the hearing of the information against Biggs, the Magistrate committed Biggs for trial, but the Attorney-General declined to file a presentment. Biggs thereupon brought an action in the Supreme Court against Sharp for damages for prosecuting him in the last mentioned pro- ceedings maliciously and without reasonable and probable cause. 'The action was heard by Wasley A.J. and a jury of six. The learned Judge left to the jury questions which, with the jury's answers, were as follows : - ' Question 1: Has the plaintiff proved that he was innocent of the charge made against him? Answer: Yes. Question 2: Did the defendant or his assistant carry goods down- stairs from the upstairs rooms during the months of March, April or May 1928? Answer: No. Question 3: At the time the defendant laid the information against the plaintiff, did he honestly believe that the plaintiff had committed perjury in the County Court action ? Answer: Yes. Question 4: Was the defendant's belief that the plaintiff had committed perjury based on reasonable grounds ? Answer: No. Question 5: When the defendant laid the information, was he actuated by malice? Answer: Yes." Damages were assessed

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We must now consider the effect of the facts which have been found by the jury. The answer to the first question put to them is that Biggs was innocent of the charge made against him. No doubt the decision of this Court in Davis v. Gell (4), dictated the question. But the finding in itself is consistent with several views: (1) That Biggs did not swear to the words alleged or any material part of them ; (2) that Biggs swore truly in respect of everything material - to which he deposed ; (3) that Biggs swore falsely as to the whole or part of that to which he deposed, but that he did not do so know- ingly. The following evidence was given by Biggs on the trial of the action for malicious prosecution : - ' Question: At the County Court hearing, what did you say about the upstairs rooms ? Answer: I said that Sharp was in occupancy of those rooms from 6th February to 20th May 1928, and that I had seen Sharp and the boy going up and down the stairs to and from those upstairs rooms; that some- times they would have goods in a basket and other times they would have no goods. Question: Did you at any time say in that action | that you had seen him three or four times a day? Answer: No, Question : When you said that in the County Court, did you believe it was true? Answer: Yes. Question: Did you in connection with that matter in the County Court say anything deliberately that was false? Answer: No. I still believe that the evidence I gave was true." The second finding of the jury, that neither the defendant nor his assistant carried goods downstairs from the upstairs rooms during the months of March, April and May 1928, is then important. It looks as if the jury were satisfied that Biggs falsely swore that Sharp was in occupation of the upstairs rooms, and that he saw Sharp and his assistant taking goods from those rooms during the months of March, April and May 1928. Perhaps, how- ever, the finding only stresses the fact of carrying goods downstairs from the upstairs rooms, and it may be doubted whether it affirms

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that Biggs swore that this took place three or four times a day, but that is not a very material variation. But we rather think that the jury found that Biggs had sworn falsely in fact, but not so to his knowledge. And this, apparently, is the view of the learned Judge who presided at the trial. In his judgment, he said: "It is not a matter which had been dealt with shortly before, it is not a matter in which the plaintiff" (Biggs) " must have said what he knew was untrue if it was not true ; there had been a lapse of time and I think it was quite unreasonable for the defendant " (Sharp), "« because his recollection of the facts differed from the plaintiff's recollection of the facts, to have jumped to the conclusion that a man swearing to a different set of facts after three years must have been guilty of perjury ; I think he should have taken into account the fallibility of human memory." The third answer of the jury, however, affirms that the defendant did honestly believe that the plaintiff (Biggs) had committed perjury in the County Court action. But the answer to the fourth question is that Sharp's belief was not based 'on reasonable grounds, which means, we suppose, that he had not taken into account the fallibility of human memory. The learned Judge in his charge said: "He" (Sharp) "' must have realized that his memory was not of the best, and, before he took proceedings against another man, he should have thought: 'Now, my memory is not too good. I might be making a mistake . . . There was a delay of three years and he might be quite honest in what he says. It may be wrong, but he is honest, and if he is honest there is no perjury.' It is suggested that if the defendant had acted as a reasonable man he would have argued in that way to himself, and that in not arguing that way he merely rushed in and took these proceedings, and that his belief, if he did believe there had been perjury committed by the plaintiff, that belief was not based on reasonable grounds." Authority exists for putting such a question, in some cases, to the jury (Heslop v. Chapman (1); Douglas v. Corbett (2); Shrosbery v. Osmaston (3); Hicks v. Faulkner (4) ; Machaitie v. Lee (5)). But if, as Cave J. said in Brown v. Hawkes (6), such a question is to be put in every case, the result will be to

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informations against the respondent and his two employees. The H. ©. or A. «information charged the respondent that " being a witness upon the ran ti trial of an action in the County Court in which the informant" (now Snare i appellant) " was plaintiff and one F. W. Biggs was defendant " he tema ho knowingly" and "falsely swore that you (meaning informant) ,ia3. were in occupation of six rooms above the shop at 232 Smith Street Collingwood and that he saw you and your assistant taking goods "from those rooms three or four times a day up to May 20th 1928. They may have missed a day or two occasionally in that time." 'The evidence is conflicting upon the question whether the respondent | did in fact swear that he saw the appellant and his assistant taking "goods from these rooms three or four times a day up to the day given lw - or said that they might have missed a day or two in that time. The tl! ease for the conclusion that he did not so swear is very strong, and % probably the jury thought that he did not. There is much evidence of malice which it is needless to go into. The proceedings terminated 'fin a nolle prosequi and, as the result of a decision of this Court in 'ui - Davis v. Gell (1), the respondent undertook to prove affirmatively his *' innocence of the charge. In his evidence upon the trial of the present action he persisted in the view that the upper rooms had not been cleared out before or much before 20th May 1928. It was common ground that the plaintiff and his assistant had gone through the « shop carrying goods quite often during the period of the occupation. #' The only question was when did their connection with the upper js rooms cease. Both parties relied upon inferences from circumstances » in reconstructing the probabilities of a trivial matter occurring three ie years before. It should be added that the defendant admitted being ,» in the shop and on one occasion at least upstairs after the date he j; gave for the removal of his goods. On the trial of the present action, y however, the appellant relied upon additional circumstances justifying ,» his contention that 23rd February 1928 was the end of the period. His case, however, involved a departure from 20th March, which ; he had formerly given, as the date when his employee left him. i The plaintiff's case was that the evidence he had given was correct, , that in any case he honestly believed it to be true and that no reason- , able man could have supposed that he did not honestly believe it

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The plaintiff paid down £100, and arranged to take possession of the shop from the defendant on that date and to pay him the

remaining £100. The shop included a basement and six upper rooms, which were reached from within by a stairway and gallery. Behind the shop stood a cottage with access to another street. The plaintiff arranged for an auction sale on 16th January 1928 of the fixtures and fittings and for the execution afterwards of some alterations. He had some conversations with the defendant which, although the details are in dispute, undoubtedly made it clear to the defendant that he wished him to remove his stock from the shop. The defendant continued to occupy or use the cottage, and he placed some of his stock in the upstairs rooms of the shop and some in the basement. The plaintiff considered that he had cause to complain of the defendant's failure to clear the shop itself and to vacate the building, and some differences appear to have arisen between them almost at once. On 6th February 1928, the plaintiff notified the defendant in writing that as and from that date the rent chargeable for the partial use of the premises would be £1 per day. On 25th February 1928, in the course of a letter to the defen- dant about other things, the defendant wrote "I have disposed of the bulk of the goods from upstairs that we placed in the back shanty. Shall start on the room under shop Tuesday or Wednesday, so may exceed my time by a couple of days." According to the defendant he had completed the removal of the goods upstairs about 22nd or 23rd February 1928, and after that date visited the upper rooms 'on one occasion only. The letter refers to the basement as the room under the shop. In a letter of 20th May 1928, he told the plaintiff that he would keep the cottage two or three months longer at 10s. a week (a sum which the defendant says he named in respect of the cottage) because the goods were hard to dispose of. On 6th October 1928, he handed over the key of the cottage and vacated the premises entirely. In February 1929, the plaintiff's solicitor
wrote to the defendant demanding the difference between £242 rent at £1 per day from 6th February 1928 to 6th October 1928 and £100 owing to the defendant for the fixtures and fittings. At the same time the plaintiff himself wrote saying that he had waited as long

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upon his counterclaim, the now defendant appealed, but against his solicitor's advice. The notice of appeal, which was dated 6th May 1931, included the ground that since the hearing of the action the falsity of the evidence of the defendant and his witnesses upon matters material to the judgment and the findings of the learned Judge had been revealed. Shortly after the hearing the now defen- dant, who appears to have been very litigious, told his solicitor's clerk that he contemplated issuing informations for perjury against the plaintiff and his two employees. The clerk says he suggested that the transaction was three years ago and a mistake might have been made ; to which the defendant replied to the effect that three months was too long to forget altogether. According to the evidence of the solicitor, the defendant told him that he could prove that he was not at or using the place after some date in February 1928, and informed him what proofs he relied upon. He heard what he had to say and told him that, if he considered he had a case, he ought to go to the police and lay all the facts before them and let them take steps in regard to it. The defendant did resort in some way to the police, but precisely what took place does not appear. On 28th April 1931, however, he went personally before a Magistrate and laid informations for perjury against the plaintiff and his two employees. The charge contained in the informations was that the accused knowingly and falsely swore that " you (meaning informant) were in occupation of six rooms above the shop at 232 Smith Street Collingwood and that he saw you and your assistant taking goods from those rooms three or four times a day up to May 20th 1928. They may have missed a day or two occasionally in that time." The Magistrate issued summonses but the defendant did not serve them for some weeks, according to him because he was unable to find the private address of one of the accused who was, however, still in the plaintiff's employ. The defendant was asked his motive for instituting these prosecutions, and he said : - "* Well, a week or two before that I had a Court case and the man gave some false evidence in the case, and I said then ' The next time that a man gives false evidence against me he will go up for it.' Of course, unluckily or luckily, Mr. Biggs happened to be the next man."

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committed perjury was based upon grounds which could not be otherwise than reasonable. In considering this contention, the effect of the finding that the defendant honestly believed in his guilt must not be misapprehended. This finding is not necessarily, or even probably, founded upon the supposition that the defendant formed a deliberate judgment of the plaintiff's guilt, much less that he considered how far his guilt might be inferred from the variance between the actual date when the transportation of goods downstairs ended and the date to which the plaintiff deposed. The unusual temperament of the defendant, his propensity to litigation, and his contentious disposition, cannot be neglected. The jury may well have thought it was as difficult to suppose that his opinion of the moral obliquity of an adversary was insincere, as that dispassionate con- sideration played any part in its formation. Honest belief in the guilt of the accused may in many sets of circumstances be incon- sistent with malice. But, in the present case, there was ample ground for the inference which the jury drew that a desire to bring an offender to justice was not the cause of the prosecution, however genuine and intense may have been the defendant's belief that the plaintiff and his witnesses were perjurers. It is not unlikely that the defendant did believe that the plaintiff had sworn that during the months of March, April and May 1928, the defendant and his man three times a day carried goods downstairs. The defendant may well have confused what he said with the evidence given by another witness. If the plaintiff had so sworn, it would have been less easy to suppose that he had fallen into an error of recollection. But there is no reason to think that the jury accepted this account of the testimony given by the plaintiff before the County Court. Further, in considering the supposed inconsistency between the second and fourth answers, the first answer cannot be disregarded, which must involve that the plaintiff honestly believed in the truth of the evidence which the jury considered he had given. In deter- mining whether the jury's findings are consistent, we ought not to assume that where two views of the facts are clearly open upon the evidence, they adopted that which would tend against the correctness of one or more of their findings, although it may support another or

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others. Accordingly, we are not entitled to treat the second answer as implying the acceptance by the jury of any evidence not involved in the exact finding it expresses. It does not appear from the transcript who proposed the second question, but it is so framed that | the answer which in the event was given means no more than that neither the defendant nor his assistant at any time in the month March, or the month of April, or the month of May, carried goods downstairs from the upstairs rooms. The Judge's charge in relation to this question commends to the jury the conclusion, upon the probabilities of the matter, that the defendant's goods had been taken from the upper rooms before the end of March 1928. But conceding these facts to have been found, there remains the question: What foundation do they afford for a belief that the plaintiff had com- mitted perjury ? The jury must for this purpose be taken to har accepted the plaintiff's version of what evidence he gave in th County Court. The facts which he deposed to in that evidence admittedly took place, but during a period of time ending not later than 1st March and not earlier than 23rd February 1928. His error lay in extending the period until 20th May 1928. But during that period the defendant had brought goods from the basement although not from upstairs. At one stage the defendant considered that he had taken them through the shop, but, at another stage he thought otherwise. He had been on one occasion at least up to the rooms above. In fixing the date for the clearance of the goods, he relied to some extent upon his letter of 23rd February 1928 and to some extent upon the date when he discharged his assistant. But at the time of the prosecution, he fixed the date as 20th March 1928. He knew, or ought to have known, that the date given by the plaintiff was adopted from his own letter of 20th May 1928 and that, apart from any assistance to be derived from it, the plaintiff must rely upon his memory of the length of a period in which some of his goods were left in one of three parts of the plaintiff's premises, parts where he had left goods for different lengths of time from 16th January 1928. He knew that the two employees, who had a more intimate | acquaintance with the matter, had assigned a duration of three

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cutor's belief in the accused's guilt. In Douglas v. Corbett (1) 1 defendant had prosecuted the plaintiff upon a charge of she stealing. The defendant believed that a sheep in the plaintif possession was one of a number which had been stolen from hin The plaintiff claimed to have bought the sheep before the date the defendant's loss. Upon the issue of reasonable and prob cause, Bramwell B. left to the jury the single question whether defendant had reasonable ground for that belief, and, upon jury answering that he had, decided that there was not an absen of reasonable and probable cause. Upon a rule for a new tri Coleridge J. said (2) : - ' Here there are many facts not really controversy ; one of those, the Judge thought, was that the defer dant really believed that the sheep, alleged to be stolen, was one those he had lost. By itself that would not necessarily amount reasonable and probable cause; he might believe this; but, if h came to that conclusion rashly and inconsiderately, he was no warranted in acting on his belief. But, if he had reasonable probable cause for his belief, that belief may be sufficient, und some circumstances, to make out reasonable and probable cai I by no means mean that a reasonable belief that goods were stol is in itself reasonable and probable cause for a charge of felon against a person in possession of the goods; but the other fa may be such that this is the sole circumstance wanting to compl the reasonable and probable cause." Crompton J. said (3) : - "Ver often, it is extremely difficult, in such cases, to say which are thi facts to be left to the jury. Here the Judge thought that many 0 the facts were not in dispute ; but he doubted upon one ; and ast that he took the opinion of the jury, who said there was reaso1 ground for the defendant's belief that the sheep was his. That alone, would not have been reasonable and probable cause for eharge of felony : in very many cases such reasonable belief migh exist without any ground for such a charge; but we must look # the other circumstances." Erle J. dissented upon the ground thi the answer to the question did not dispose of the issue of existence of reasonable and probable cause.

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The answer which the jury gave to the second question does not in any way modify or affect the conclusive nature of the answer to the first question. The second answer does not suggest that if the respondent deposed to the occurrence of the events in the second question he was guilty of perjury. Indeed, there was some doubt whether the respondent gave such evidence ; but, assuming that doubt to be resolved against him, the first answer entirely exculpates him and shows that the jury's view was that the plaintiff did not swear falsely or recklessly, but merely made a mistake. The nature of the controversy between the parties rendered it very desirable to have that issue of fact, contained in the second question, settled by the jury. Although an affirmative answer to the second question would have tended to the respondent's advantage on the question of the absence of reasonable and probable cause, yet the negative answer does not render it necessary to conclude, as was argued on behalf of the appellant, that there was not an absence of reasonable and probable cause for the prosecution. I agree in the view expressed by Mann J., and its application to the present case. His Honor said : "' There may be many statements which, if untruly made, are only consistent with wilful perjury, but it is also clear to everyone, I think, that there are innumerable controversies in which two parties honestly believe they are saying what is true and each thinks the other party is saying what is untrue - in which it would be dangerous in the extreme to suggest that the moment you arrive at that state of things each is entitled, with impunity, to launch a prosecution for perjury against the other." This present case is one of such controversies. Assuming that the respondent did swear that the particular events which the jury, by its answer to the second question negatived, did occur in those months, I do not think that it should have been concluded that reasonable and probable cause for the prosecution existed. The test applied by Macfarlan J. in his judgment in the Supreme Court was, in my opinion, correct. His Honor said: "In my opinion it has been established that a reasonable man could not come to the conclusion that the plaintiff had not made a mistake."

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