Tahche v Abboud [2002] VSC 42

5. They seek judgment under Rule 23.01 on the ground that the claims pleaded against them do not disclose a cause of action and are scandalous, frivolous, vexatious and an abuse of process. In the alternative, they seek an order striking out the allegations made against them in the statement of claim on the same grounds. Orders are also sought for summary judgment on the basis that, in the circumstances alleged against them, they were immune from suit. In the alternative, pursuant to Rule 47.04, they seek the determination of a series of questions directed to issues relevant to the summary judgment and strike out applications. Leave was given to the DPP to intervene in their application.

8. After submissions from the parties, and discussions between the parties as to the form of the questions, I was persuaded to order the trial of separate questions, questions relevant to the judgment and striking out applications.

12. Before considering the questions, it is necessary to set out the relevant pleadings in the current statement of claim which set out the facts and allegations relevant to the applications and the defence responses.

15. The plaintiff's pleading, as it presently stands, makes a claim against the fifth and sixth defendants for damages for misfeasance in a public office. The relevant pleadings state the following:

"MISFEASANCE IN PUBLIC OFFICE 29 Further and alternatively, .... the fifth and sixth defendants .... were at all relevant times public officers. PARTICULARS

The fifth defendant was a crown solicitor and the sixth defendant was counsel prosecuting the plaintiff. Both the fifth and sixth defendants were performing public functions in the public interest and were paid from public funds...

(a) were under a continuing duty to disclose to the plaintiff or to his legal representatives, or to ensure the disclosure of, information of which they were aware that was relevant to the defence of the alleged revenge rape, alternatively was required to be disclosed for the plaintiff to have a fair trial;

(b) were under a duty to conduct all aspects of the prosecution of the plaintiff in a fair and impartial manner.

30B During or prior to the trial the fifth and sixth defendants received information that was relevant to the defence of the revenge rape, alternatively was required to be disclosed for the plaintiff to have a fair trial ( Re "information")

During or prior to the trial the fifth and sixth defendants became aware that the first defendant claimed to have been raped by her other cousin Charlie (as well as by the plaintiff). Such information could and would have been used by the plaintiff's counsel;

a. to suggest a possible cause of injuries to the complainant's genitalia, which was a crucial issue at the trial;

b. to challenge the complainant's credibility; and/or

c. to adjourn the trial pending further investigation.

30C After having received the information the fifth and sixth defendants;

a. failed to communicate, or to ensure the communication of information to the plaintiff or to his legal representatives, further and alternatively decided not to communicate, or decided not to ensure the communication of the information to the plaintiff or to his legal representatives;

b. actively dissuaded, or were party to actively dissuading, the first defendant from disclosing the information to the plaintiff or to his legal representatives;

c. actively dissuaded, or were party to actively dissuading, the first defendant from formally reporting the allegations against Charlie to the police.

a. failure to communicate or to ensure the communication of the information, further and alternatively the decision not to communicate, as alleged in paragraph 30C(a) above;

b. active dissuasion as alleged in paragraph 30C(b) above,

c. active dissuasion as alleged in paragraph 30C(c) above, was and were:

i. in breach of the duties alleged in paragraph 30A;

ii constituted invalid acts and/or omissions by the fifth and sixth defendants in the performance of their functions and powers as prosecutors.

They (sic) acts and/or omissions were in breach of the duties as alleged in paragraph (i) above. They were for the improper purpose of denying to the plaintiff defences that would or might otherwise have been open to him, or information that would have assisted in his defence. The improper purpose is to be inferred from the facts that the fifth and sixth defendants knew that they were acting in breach of their duties and from the fact that the natural effect of the failures, decisions and dissuasions were as alleged.

a. failing to communicate or to ensure the communication of the information, further and alternatively the deciding not to communicate, as alleged in paragraph 30C(a) above;

b. actively dissuading as alleged in paragraph 30C(b) above;

c. actively dissuading as alleged in paragraph 30C(c)

i. were aware of the duties imposed upon them as alleged in paragraph 30A above, or alternatively were recklessly indifferent as to the existence and content of such duties;

ii were aware that the failure to communicate, decision not to communicate and/or dissuasions alleged in paragraph 30C above were or constituted invalid acts and/or omissions in the performance of their functions and powers as prosecutors as alleged in paragraph 30D above, or alternatively were recklessly indifferent as to whether they were or constituted invalid acts and/or omissions in the performance of their functions and powers as prosecutors as alleged in paragraph 30D above;

iii. were aware that the failure to communicate, decision not to communicate and/or dissuasions alleged in paragraph 30C above would or would be likely to or were calculated in the circumstances to cause harm to the plaintiff, alternatively were recklessly indifferent as to whether or not the failure to communicate or decision not to communicate and/or dissuasions alleged in paragraph 30C above would or would be likely to or were calculated in the circumstances to cause harm to the plaintiff.

30F. It was reasonably foreseeable that the failure to communicate, decision not to communicate and/or dissuasions alleged in paragraph 30C above would or might cause the plaintiff harm.

30G. The failures, decisions and/or dissuasions alleged in paragraph 30C above:

(a) were a cause or causes of the plaintiff being convicted for the revenge rape and thereafter remaining in prison until July 1995; alternatively,

(b) denied to the plaintiff a chance of being acquitted of the revenge rape or otherwise getting out of prison before July 1995.

30H. By reason of the matters alleged in paragraphs 30G, the plaintiff has suffered loss and damage including loss of liberty.

The plaintiff was convicted of the alleged revenge rape and thereafter remained in prison until July 1995. The plaintiff otherwise refers to and repeats the particulars subjoined to paragraph 9 above[1].

The breaches were in contumelious disregard of the plaintiff's rights as an accused to be provided with all relevant material so that he could properly defend himself against any charges and to have a fair trial.

65. In their defences the fifth and sixth defendants admitted their roles in the trial but denied that they were at any relevant time

"a Public Officer for the purpose of the tort of misfeasance in a public office"

or that by reason of their role in the proceedings they came within "the ambit or scope" of that tort. They admitted that they were under a

"duty to disclose to the plaintiff or to his legal representative information of which they were aware that was relevant to the defence of the alleged rape "

"required to be disclosed to the plaintiff to have a fair trial."

They also admitted that they were under "a duty" while conducting the trial

"to carry out their instructions in a fair and impartial manner."

75. In their pleading, the two defendants described the above duties as personal duties but said that they were owed "to the Court" and not "to the plaintiff". They alleged further that they carried out and fulfilled each of their personal duties. They admitted that they received the alleged information during the trial but alleged that it was passed on by the sixth defendant in the presence of the fifth defendant to counsel for the plaintiff, Mr Gucciardo, and that they thereby disclosed the information to the plaintiff. They also alleged that Mr Gucciardo made an informed and deliberate decision not to raise or rely on the information or otherwise investigate it in conducting the defence of the plaintiff for the alleged revenge rape.

78. It appears that there will be a dispute on the evidence as to whether the information was conveyed to Mr Gucciardo. Thus the difficult legal questions raised by the parties ultimately may not need to be considered. Nonetheless, I was persuaded that it was necessary in light of the judgment and strike out applications, and in the interest of the proper management of the litigation, that the following questions should be determined as preliminary questions.

"(a) As a matter of law, is the fifth defendant immune from all liability to the plaintiff on the facts alleged in the further amended statement of claim and on the facts in the statement of agreed facts attached hereto on the grounds that as a matter of public policy she is immune from all and any liability arising from any acts or omissions on her part as a solicitor instructing the prosecuting counsel at the rape trial of the plaintiff in respect of information that was relevant to the defence of the revenge rape; alternatively that was required to be disclosed for the plaintiff to have a fair trial? (b) As a matter of law, is the sixth defendant immune from all liability to the plaintiff on the facts alleged in the further amended statement of claim and on the facts in the statement of agreed facts attached hereto on the grounds that as a matter of public policy he is immune from all and any liability arising from any acts or omissions on his part as prosecuting counsel at the rape trial of the plaintiff in respect of information that was relevant to the defence of the revenge rape; alternatively that was required to be disclosed for the plaintiff to have a fair trial? (c) At the times relevant to the matters alleged in paragraphs 30A to 30G of the further amended statement of claim and on the facts alleged in the further amended statement of claim and on the facts in the statement of agreed facts attached hereto, was the fifth defendant - (i) the holder of a public office; (ii) a public officer - for the purposes of the tort of misfeasance in public office? (d) At the times relevant to the matters alleged in paragraphs 30A to 30G of the further amended statement of claim and on the facts alleged in the further amended statement of claim and on the facts in the statement of agreed facts attached hereto, was the sixth defendant - (i) the holder of a public office; (ii) a public officer - for the purpose of the tort of misfeasance in public office? (e) As a matter of law, and on the basis of the facts alleged in the further amended statement of claim and on the facts in the statement of agreed facts attached hereto, did the fifth defendant owe to the plaintiff the duties alleged in paragraph 30A of the further amended statement of claim? (f) As a matter of law, and on the basis of the facts alleged in the further amended statement of claim and on the facts in the statement of agreed facts attached hereto, did the sixth defendant owe to the plaintiff the duties alleged in paragraph 30A of the further amended statement of claim?"

These questions have since been tried and these reasons relate to that proceeding.

87. Also to be determined in this hearing is an application by the plaintiff by summons of 13 July 2001 (para 10(b)) for leave to amend the statement of claim to allege a further matter against the fifth defendant.

90. It is sufficient, for present purposes, to note that the proposed amendment involves the assertion of a duty on the part of the fifth defendant to disclose to the plaintiff or, alternatively, to her superiors at the office of the DPP, information that came to her attention in about November 1993 after the conclusion of the plaintiff's trial. That information was that a police doctor, Dr Jappie, had formed the view that the injuries that the first defendant said had been inflicted by her cousin Charlie in a later rape had in fact been self-inflicted. It is alleged that the fifth defendant did not inform the plaintiff or his family or legal representatives, or her supervisors, of this information but instead arranged another examination of the first defendant by another police doctor, Dr Wells. It is further alleged that Dr.Wells informed the fifth defendant that he could neither rule in nor rule out self infliction. Implicit in the proposed pleading is the assertion that the fifth defendant did nothing following receipt of the report of Dr Wells.

95. The Statement of Agreed Facts referred to in the questions is as follows:

"1. At all material times the fifth defendant (Angela Cannon) was: (a) employed as a solicitor under section 8 of the Director of Public Prosecutions Act 1982 (Vic) as it was in force prior to 1 July 1994 and thereafter under Part 7 of the Public Prosecutions Act 1994 (Vic); (b) the solicitor instructing at the prosecution of the plaintiff for the alleged revenge rape referred to in the pleadings; (c) acting within the scope of her employment - (4A Further Amended Statement of Claim) 2. At all relevant times the fifth defendant's wages were paid from public funds. 3. At all material times the sixth defendant (Mark Rochford) was: (a) a member of the Victorian Bar; (b) counsel prosecuting the plaintiff for the alleged revenge rape referred to in the pleadings - (4B Further Amended Statement of Claim and 3 of the further amended defence of the Fifth and Sixth Defendants) 4. The sixth defendant's brief fee for appearing at the trial was paid from public funds. 5. On or about 10 December 1991 committal proceedings were held and the plaintiff was committed for trial for the alleged revenge rape - (6A Further Amended Statement of Claim). 6. On or about 23 March 1992 to 30 March 1992, the plaintiff was tried for the alleged revenge rape (the "trial"), and on 30 March 1992 the plaintiff was convicted of the alleged revenge rape - (6B Further Amended Statement of Claim). 7. The first defendant gave evidence that the plaintiff had committed the revenge rape at the committal and trial of the plaintiff - (7 Further Amended Statement of Claim). 8. On 13 April 1992 the plaintiff was sentenced to a term of imprisonment for 14 years with a minimum term of 11 years - (7A Further Amended Statement of Claim). 9. The DPP appealed the sentence referred to in paragraph 6C above, and on 11 August 1992 the Court of Appeal increased the sentence to 16 years with a minimum term of 13 years - (7B Further Amended Statement of Claim). 10. On 27 July 1995 the plaintiff sought and was granted bail - (7C Further Amended Statement of Claim). 11. On 28 September 1995 the Court of Appeal quashed the conviction - (7D Further Amended Statement of Claim). 12. On or about 13 October 1995 the DPP entered a nolle prosequi in relation to the criminal proceedings brought against the plaintiff - (8 Further Amended Statement of Claim).

100. It is relevant to refer to an affidavit filed in this matter by the DPP. He deposed

"2. When I assumed the position of Senior Crown Prosecutor (Major Trials) I became familiar with the practice with the Office of Public Prosecutions which appeared to reflect the practices as they had been in the Office of the Director of Public Prosecutions. The office practice reflected the principles of law requiring full disclosure so as to ensure a fair trial. 3. In any case where there was doubt as to whether disclosure should be made, it was office policy to err on the side of disclosure.

4. Instances of questions relating to disclosure were rare. When they did arise, office practice was that they would be referred for advice from the Crown Prosecutor."

Thus, it may be said that questions of disclosure rarely arise. When they do, the sensible and responsible practice is followed of seeking advice and, when in doubt, erring on side of disclosure.

107. The submissions of the parties reveal that there are essentially three areas of dispute to be considered.

(a) Definition of Public Office.

Whether the positions held by the fifth and sixth defendants were, at the relevant times, offices of a kind to which liability for the tort of misfeasance in a public office can attach.

(b) Nature of duty.

Whether the duties alleged in paragraph 30A, and, in particular the duty to disclose information to an accused, admitted by fifth and sixth defendants, was one owed to the plaintiff[2] and whether the admitted duty is one to which, liability for the tort of misfeasance in a public office can attach.

(c) Immunity from suit.

Whether the fifth and sixth defendants are immune from suit for misfeasance in a public office for failing to disclose the information in question.

Before considering these issues, it is necessary to place them in the context of the elements of the tort of misfeasance in a public office.

THE ELEMENTS OF THE TORT OF MISFEASANCE IN A PUBLIC OFFICE

113. In a ruling handed down on 30 March 2001 in this matter, I referred to authorities which have considered the elements of the tort of misfeasance in a public office in recent times.[3] As the High Court has stated, the limits of the tort remain to be defined. The issues raised in the present case explore those limits.

116. The basic elements of the tort of misfeasance in a public office have been identified as:

(1) the defendant must hold a public office;

(2) there must be an invalid exercise of power or purported exercise of power;

(3) the defendant must be shown to have had acted with the necessary intent;

(4) the plaintiff must suffer damage as a consequence of the exercise of power or purported exercise of power.

122. The second requirement, the invalid exercise of power, includes an absence of power and acts invalid for want of procedural fairness.[4] It includes the exercise of a power for an improper purpose, including the purpose of a specific intent to cause injury. It arguably includes an exercise of power for irrelevant considerations or for considerations that were manifestly unreasonable.

125. As to the third element, intent, it includes acting for the improper ulterior motive of intent to cause injury to the plaintiff ("targeted malice"). The requisite intent also includes acting with knowledge that there was no power to so act and that the act would cause or be likely to cause injury to the plaintiff, or proceeding with reckless indifference as to the existence of the power to engage in the conduct in question and its consequences[5].

128. What is involved is an abuse of power, and it is the absence of an honest attempt to perform the functions of the office which is at the heart of the tort[6].

131. I turn to the first area of dispute identified, namely, whether the fifth and sixth defendants may be said to be the holder of a public office for the purpose of the tort. This first requires consideration of what is a "public office" for the purpose of this tort.

136. Counsel for the fifth and sixth defendants developed a detailed and subtle argument on the definition of the concept of "public office" arguing that the positions held by them did not come within such definition.

139. In summary, counsel argued that the plaintiff must establish that the person sued holds a public office to which statutory or common law powers attach. Counsel submitted that there are additional indicators. One is whether the person was remunerated from public funds. Another is whether the office is one with an independent existence - it exists whether a person holds the office or not. An example of an office with an independent existence is the statutory office of the Director of Public Prosecutions. He conceded, however, that the indicators are not exhaustive. He submitted, however, that it is essential in determining what is a public office that the plaintiff be able to establish that there are statutory and, further or alternatively, common law powers attaching to the alleged office.

142. In relation to the fifth defendant, counsel submitted that:

(a) she was not the occupier of any office

(b) if she was, she had no powers attaching to the office

(c) if she had powers attaching to the office she had not exercised or could not be fairly said to have exercised those powers.

As to the sixth defendant, Counsel submitted that a barrister engaged on behalf of the Crown is not the holder of public office. He remains a member of the independent bar. He submitted that he had a duty to act fairly, but that this was derived from the common law and ethics. The fact that both defendants were officers of the Court was irrelevant.

148. In developing the argument, counsel referred to a large number of authorities which contain examples of what has been held to be a public office for the purpose of the tort and what has not. For example, Ministers of the Crown, including the Prime Minister of Quebec, have been held to be holders of public offices for the purpose of this tort[7] So too has the Bank of England[8]. So too have police officers [9] (exercising powers under the relevant Licensing Act and the common law powers of a constable) and stock inspectors[10]. It was suggested in Grimwade v State of Victoria [11]that a public prosecutor may be subject to the tort but the issue of whether counsel from the independent bar briefed to prosecute was the holder of a public office was not considered. Municipal Councils have been held to be holders of public office.[12] On the other hand, in Tampion v Anderson [13]it was held that a person appointed by Order in Council to act as a Board of Enquiry and counsel from the independent bar appointed to assist such Board were not holders of a public office for the purpose of the tort.

151. Counsel also referred to the Public Service Act 1974 (Vic) and the Public Sector Management Act 1992 (Vic) and distinctions drawn therein between officers and other employees under that legislation.

154. He referred to s.69 of the Public Service Act 1974 (Vic) as an example of a provision which attaches powers and duties to an office which may be delegated from the person holding that office to others. He submitted that that section indicated that some offices had powers attached, and this was further confirmed by s. 70 of that Act dealing with the impact of changes in "offices", and the imposing or conferring of powers in those circumstances.

157. Counsel also referred to the Director of Public Prosecutions Act 1982 (Vic) and the Crimes Act 1958 (Vic) dealing with Crown Prosecutors. He conceded that in light of that legislation it might be argued that Crown Prosecutors appointed prior to the Public Prosecution Act 1994 (Vic), (the 1994 Act) hold a public office. He also argued that there are offices identified in the 1994 Act.

160. Counsel submitted that under that legislation, the distinction is drawn between persons holding offices and staff. He conceded that it may be argued, under the test submitted for the fifth and sixth defendants, that the DPP and Crown Prosecutors were the holders of a public office on the basis that there were powers attaching to the offices. He submitted, however, that it would be necessary to identify what powers are conferred on those offices, and it is only in respect of those powers that the tort could apply.

163. Counsel also referred to s.9 (4) of the 1994 Act which gives the DPP power to appear in person or by counsel or solicitors. He argued that counsel or solicitors appearing for the DPP were not exercising any power attaching to their "office" if they appeared on behalf of the DPP. He said the DPP was exercising power through an agent and no powers as such attached to the position of the agent[14]. Counsel argued that the staff employed in the office of the DPP do not have powers and do not hold public office. When they go to Court they go as the agents of the Director and they are not themselves exercising power attaching to any office that they themselves hold as individuals. Thus, a solicitor employed in the office of the DPP who is instructing counsel is not exercising any powers attaching to an office that he or she holds by virtue of his or her position.

167. Employment by Government does not necessarily make a person a holder of a "public office"[15] for the purpose of the tort of misfeasance in a public office. The starting point of any analysis of the concept of "public office" in that context, is the discussion of the concept of "public officer" by Best C.J. in Henly v Mayor of Lyme[16]. He described a public officer as follows:

"In my opinion, everyone who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer."[17]

171. Best C.J. then referred to a number of examples; Bishops who had certain estates granted to them and duties imposed upon them such as to hold Ecclesiastical Courts; clergymen who refused to administer the sacraments to a man who was thereby prejudiced in his civil rights or who neglected to register a person brought for baptism as a result of which that person lost an estate. He also referred to the example of the Bank of England refusing to transfer stock and the Lord of the Manor required to hold a court as one of the considerations on which land had been granted to him, and refusing or neglecting to do so, resulting in loss to a copyholder. Best, C.J. concluded:

"It seems to me that all these cases establish the principle, that if a man takes a reward, - whatever be the nature of that reward, whether it be in money from the Crown, whether it be in land from the Crown, whether it be in land or money from any individual - for the discharge of a public duty, that instant he becomes a public officer; and if by any act of negligence or any act of abuse in result of this, any individual sustains an injury, that individual is entitled to redress in a civil action".[18]

175. I note that Henly v Mayor of Lyme did not concern the exercise of a statutory or common law power but rather the maintenance of a sea wall in performance of a condition attaching to the grant of the wall and the right to certain tolls.

178. The above statements of Best C.J. have often been cited in the authorities exploring the elements of the tort. It appears, however, that the question whether the defendant held a "public office" or was a "public officer" has not arisen often in the reported cases. One exception is the case of Tampion v Anderson. [19] In that case, the defendants were remunerated from public revenue. At first instance, McInerney J[20] considered the question but after reviewing a number of references found it unnecessary to define

"the precise nature or the extent of the public interest or the interest which the public must have in the performance of the duty before the office can be regarded as a public office."

182. The Solicitor-General who had appeared for the defendants in Tampion v Anderson had contended that the essence of a public office is that there are some public posts usually remunerated from public revenues (although this is not essential) where the holder of the office has a duty not only to his employer who is usually the Crown but also to members of the public as such.

185. McInerney J, took the view that the defendants were not public officers even though they were paid out of public revenue. Referring to the position of counsel assisting, he expressed his reasons as follows[21]:

"He is in no sense answerable to members of the public for the performance or non performance of his duty. He is answerable to his client, to his instructing solicitor and to the Board or Commission but to no one else".

189. As to the position of the defendant Anderson, who had been appointed to conduct the enquiry, His Honour commented that, even though he was appointed by the Governor in Council and was required to report to the Governor or Governor in Council,

"the nature of the functions committed to him by the Order in Council, which appointed him, do not, in my opinion, bring him within the concept of a public officer".[22]

193. The matter went to the Full Court[23]. It considered further the definition of a public office and held:[24]

"The office must be one the holder of which owes duties to members of the public as to how the office shall be exercised".

"The action has been held to lie in respect of an act done in purported exercise of statutory or common law powers incident to such an office where those powers are knowingly exceeded: c.f. Farrington v Thomson and Bridgeland, [1959] VicRp 49; [1959] VR. 286...but to be able to sustain an action upon this basis the plaintiff plainly must not only show damage from the abuse, he must also show that he was the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of".

201. Thus the Full Court attempted to define the concept of "public office" by reference to the type of duties owed - they must be owed to members of the public and, for the plaintiff to be successful, the plaintiff must show that he was one of the members of the public to whom the duty was owed.

204. The Full Court held in Tampion v Anderson[25] that the first defendant who was conducting the inquiry owed;

"no duties to members of the public as to how he should carry out his task. He would be in no different situation in law for that matter from that of a person appointed for such purposes by a fellow citizen".

208. As to the position of counsel assisting the Board of Inquiry, the Full Court commented that his position was;[26]

"obviously not a public office in the relevant sense, and he had no statutory powers with respect to the inquiry".

212. The analysis of the Full Court does not support the contention of the fifth and sixth defendants that it is an examination of the nature of the powers, if any, attaching to the alleged office that determine whether the position held by the defendant is properly categorised as a public office.

215. The powers of that person must be considered in determining whether there has been any misfeasance in a public office because it is the purported exercise of those powers that must be shown to have been invalid. What must be examined in deciding whether a public office was held, however, are the duties imposed, and allegedly breached, and their nature. In particular, are they owed to the public and the plaintiff. Here, accepting for the purpose of argument, that there were common law duties imposed on prosecuting counsel and his instructing solicitor to disclose the information, these duties must have carried with them the necessary incidental powers to decide whether to disclose or withhold information[27], and the power to disclose it or withhold it, and it is the lack of bona fides in the exercise of those powers that is alleged.

218. In support of his argument, counsel for the fifth and sixth defendants referred to a number of cases which discuss the scope of the tort by reference to the powers alleged to exist in those particular cases. They do not, however, suggest that it is the nature of the powers as such, attaching to the position, which determine whether the position is a public office. In reality counsel was attempting, in a subtle argument, to reach the conclusion that the only persons who would be liable for the tort of misfeasance in a public office would be those holding an office of independent existence, which typically could be identified by statute and to which were expressly attached statutory or common law powers. In my view this would be an excessive narrowing of the broad concept of public office[28] in the context of the tort and is not supported by authority. Counsel in reality sought to argue that what may be the clearest examples of a public office also defined the concept.

221. I note also, that the Full Court in Tampion v Anderson[29] left open the question of whether a person exercising the statutory powers conferred on a Board of Inquiry by the Evidence Act 1958 (Vic), might be liable for misfeasance in a public office if those statutory powers were consciously abused. This analysis suggests that a consideration of the powers held by the person in the position in question may become relevant where the office would not be regarded as "public office" on the basis of the duties attaching to the relevant position - propositions contrary to those advanced for the fifth and sixth defendants[30].

224. For the foregoing reasons, the arguments of the fifth and sixth defendants on the meaning of "public office" are not accepted.

"Public Office" - Member of the Independent Bar

228. As to the sixth defendant, it was also put that there was nothing public about his position, he being a member of the private bar briefed to appear to prosecute the plaintiff in that case for a limited period. His office was not a public office.

231. While it may be that the nature of the tenure of the office and its duration could affect the decision whether a "public office" was held[31], I suggest it would need to appear that the duties were affected by those aspects in a material way. For example, the tenure of the position might be so brief that it would be inappropriate to conclude that any real duties had been imposed. The circumstance that an independent discretion is given to the holder of the office, on the other hand, should not affect the characterisation of the office for the purpose of the tort; for if it did, liability for the tort could be easily avoided - and would have been in many of the cases where it has been held to apply.

234. In the present case, the fact that the sixth defendant was retained from the independent bar for a limited period merely has the consequence that the period for which he could be said to hold a public office was limited to the period of the retainer. For that period, however, he held the position of prosecutor.

DEFINITION OF "PUBLIC OFFICE" -THE NEED TO EXAMINE DUTIES

238. In light of the definition of "public office" in Tampion v Anderson[32], it is necessary to have regard to the nature and scope of the duties imposed on the fifth and sixth defendants as prosecuting counsel and instructing solicitor in deciding whether they may be properly described as holding a "public office" for the purpose of the tort of misfeasance in a public office. The principle submissions on this issue were put forward by counsel for the DPP.

ISSUE - NATURE AND SCOPE OF DUTIES OF PROSECUTING LAWYERS

243. It was common ground between the parties that a duty to ensure a fair trial was owed by counsel prosecuting and his instructing solicitor. It was common ground between the plaintiff and the DPP that this duty applied before, during and after the trial. The fifth and sixth defendants did not concede that the duty continued after the trial. Their counsel indicated that if the proposed amendment to raise the issue were allowed, no admissions would be made and in particular reliance would be placed upon the need for the fifth defendant to make further investigation.

246. It was common ground that the duty to ensure a fair trial is not an absolute duty. It was also common ground that the duty to ensure a fair trial carried with it a duty to call all relevant witnesses, unless the witnesses were not credible or they were surplus, in which case the duty required that they be made available to the accused.[33]

249. It was also common ground that the duty to ensure a fair trial owed by the prosecutor and the instructing solicitor carried with it a duty to convey relevant information that they received before and during the trial which could result in acquittal. Again, it appears to be common ground that this is not an absolute duty.

253. The duty to disclose information during a trial was discussed by the Court of Appeal in R v Lewis-Hamilton[34]. The Court of Appeal in referring to the "obligation" to disclose information cited with approval the following passage from the judgment of King C. J. in R v K[35]. After indicating that there must be limits to the obligation, the Chief Justice said:

"It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross examination based upon it might elicit answers materially affecting the credibility of the witness".

257. In R v Lewis - Hamilton the material in question was a victim impact statement which the Court of Appeal accepted contained material which would satisfy the quoted test. It held that it was essential that the document be made available to the defence before trial and, consequently, a miscarriage of justice arose because of the failure of the prosecution to disclose it.[36]

260. There was also discussion of the obligation under English law in R v Brown [37]where a test suggested by Jowitt J, in R v Melvin,[38] was adopted by the House of Lords[39]. Jowitt J, stated that material should be disclosed;

"....which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on the evidence which goes to (1) or (2)".

264. Lord Hope of Craighead,[40] with whom the other members of the House of Lords agreed, went on to say that;

"the phrase 'an issue in the case' should not be construed narrowly but given a broad interpretation".

He also noted with approval the comments of Steyn L.J., in the Court of Appeal, about the difference between discovery in civil cases and disclosure of the Crown in the criminal case. In particular, in a criminal trial the Crown is obliged to provide material relevant to the credibility of prosecution witnesses. Such an obligation is not imposed upon parties to civil proceedings when giving discovery. The material as to credit, Steyn L.J. had suggested, included examples such as previous statements of prosecution witnesses, the disclosure of a request for a reward by a prosecution witness and previous convictions of a prosecution witness. As to that Steyn L.J. had quoted[41] with approval the statement by Cooke P in Wilson v Police;[42]

"As to the kind of conviction within the scope of the duty, the test must be whether a reasonable jury or other tribunal of fact could regard it as tending to shake confidence in the reliability of the witness".

270. Steyn, L.J. had also suggested that that test may be capable of being applied to other collateral material affecting the credibility of prosecution witnesses.[43] Steyn L.J. also stated that the duty of disclosure was not confined to written material but extended to oral information as well.[44]

273. I note that in R v Brown both the House of Lords and the Court of Appeal, referred to the obligation as a "duty" - as was done in Wilson v Police[45]. In the pleadings and in the submissions in this case, the term "duty" was used by all parties. I also note that in the Victoria Bar Inc. Practice Rules of Conduct the obligations of prosecuting counsel to call witnesses and disclose information, are described as "Prosecutor's Duties".[46]

276. Plainly the performance of the duty to ensure a fair trial and its ancillary duties is an onerous one and can at times be difficult. There is an ever present tension between the obligation on those representing the Crown to prosecute the Crown case with due vigour and with a view to securing a conviction, and the obligation to ensure a fair trial. Any decision may also be complicated at times by issues of confidentiality and privilege.[47]

279. The authorities were also considered by the Court of Appeal in R v Garofalo.[48] In that case the duty to disclose was considered in the context of evidence of prior convictions for dishonesty of the principal Crown witness, which came to light after the trial. The Court of Appeal stated the law to be as follows:[49]

"That, at the least, in trials on presentment or indictment, the prosecution should inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness's credibility".

Ormiston J.A., who delivered the principal judgment, noted that in, inter alia, Wilson v.Police[50] and R v Brown,[51] the courts considered the application of common law principles. His Honour then commented that what was critical to those decisions was;

"not so much the practice recognised or laid down in those jurisdictions but a recognition of the common law obligations of the prosecution to make proper disclosure of relevant witnesses' prior convictions, in terms which cannot be described as perfunctory or restricted".[52]

After noting the statement in the speech of Lord Hope of Craighead [53] in R v Brown that;

"the rules of disclosure owe their origin to 'the elementary right of every defendant to a fair trial".

Ormiston, J.A. noted the distinction drawn between the leading of evidence which might undermine the Crown case and disclosure of it to the defence, commenting that the common law rules required the latter but not the former. After referring to the then available Australian authorities,[54]his Honour stated that there was no direct authority dealing with the issue of the obligation to disclose prior convictions. He concluded;

"...by reference to considerations both of authority and principle, that at the least there is, in general terms, a common law duty to make disclosure of previous convictions of prosecution witnesses, though the precise manner in which this duty should be worked out and applied may depend upon the court in which the prosecution has been brought, the means of obtaining that information and possibly other circumstances relevant to the individual case, as analysed below[55].

His Honour also rejected the attempt by counsel for the respondent to limit the obligation to circumstances where a specific request was made for the criminal history of a particular witness[56].

292. Counsel for the DPP sought to limit the duty by arguing that, where information comes to light after the trial, the decision of the prosecuting counsel and solicitor needs to be made in the context of the principles of law concerning fresh evidence and appeals. Those principles were summarised by counsel to require that:

(a) the evidence is reliable in the sense that it is apparently credible or capable of belief; (b) the evidence is "new" in the same sense that it was not, with the exercise of due diligence, available to the convicted person at trial; and (c) the evidence is of such cogency that, if believed, there is a significant possibility that the jury, if they had been appraised of it, and acting with reason, would have acquitted the convicted person of the charges put against him. [57]

296. Assuming, for present purposes that that is a correct summary of principles applicable to appeals on the grounds of fresh evidence, the law does not, in my view, require the prosecution to consider them in deciding whether to disclose material to the accused after conviction. The valid point was also made, however, that any material that came to light at any stage of the proceeding has to be assessed and may require further investigation before a decision about disclosure can be made.

299. Counsel for the DPP in the present case also argued that it needed to be borne in mind that if the tort of misfeasance in a public office was available in respect of non disclosure of evidence, it must also be available for a failure to call witnesses. In my view, this does not follow. Although the duties have similar features and the same origins, they are separate and distinct.

Nature and scope of duties of Prosecuting Lawyers

304. In the present case, the critical question is whether the duty to disclose information satisfies the duty requirements of the definition of public office. Several submissions were put by the fifth and sixth defendants and the DPP.

307. As to the fifth defendant, counsel submitted that she was answerable to the Director, the solicitor for the Director and perhaps the Court but not the accused. In addition no duty was owed to the public by the fifth defendant.

310. As to the sixth defendant, counsel conceded that counsel prosecuting owed a duty to the Crown or the community, and possibly the Court, but did not owe a duty to the accused.

Prosecuting Lawyers - are duties owed to the Accused?

315. Counsel for the DPP referred to several judicial statements in support of the argument that it could not be said that there was any duty owed by prosecuting counsel (or solicitor instructing) to an accused person.

318. Reference was made, first, to a statement by Deane J in Whitehorn v R[58]. In that case, the prosecution did not call the victim of the alleged indecent assault. The only evidence against the accused was a signed confession. Deane, J, after referring to the adversary nature of the proceedings and the requirement of fairness and detachment to be observed by the Crown in the calling of witnesses, commented

"The requirements of those standards are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of a Trial Judge, particularly in summing up to the Jury or in dealing with an application for an adjournment or for discharge of the jury, to seek to ensure that an accused receives a fair trial and the powers of the appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial."

322. The nature of the prosecutor's duty was also discussed by Dawson J in Whitehorn v R[59]. His Honour, after referring to Richardson v R[60], referred to the fact that it may be said that the choice to be made by a Crown Prosecutor involves the exercise of discretion and commented that:

"...that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial".

"It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor."

330. Reliance was also placed on the decision of the Full Court of Western Australia in Love v Robbins[61]. In that case an action was brought claiming damages for breach of duty and conspiracy. The duty alleged was the duty of the Crown Prosecutor to conduct the proceedings fairly. The plaintiff in that case had been convicted in 1982 of fabricating evidence and of perjury in an earlier criminal trial conducted in 1980. The plaintiff claimed that he had not received a fair trial due to the manner in which the Crown Prosecutors had conducted both criminal trials and that, as a result, he was wrongly convicted in the second trial and imprisoned. His appeals against conviction had been dismissed and he subsequently issued the civil proceeding claiming damages for breach of the duty to conduct proceedings fairly. The judgment of the Court was delivered by Malcolm C. J.

333. The action had been dismissed by a Master of the Supreme Court on the basis that the respondents were immune from suit in a collateral civil action for breach of any alleged common law duty or conspiracy. Malcolm, C. J. considered, inter alia, a submission by the appellant that the immunity of prosecuting counsel no longer applied and that prosecuting counsel had a duty to be fair and incidental duties which were owed to an accused person personally;

"as distinct from being public duties which were duties of his office or duties owed to the Court, which were owed as officers of the Court".[62]

The Chief Justice then analysed the learned Master's reasons noting the Master's reliance on the relevant High Court decisions.

338. After referring to the statements of Deane, J. in Whitehorn[63], Malcolm C. J, stated that the position described by Deane J. was entirely consistent with the immunity principle;[64]

"it is entirely inconsistent with any duty to be fair or any related duty owed by prosecuting counsel to the accused personally".[65]

342. The Chief Justice commented that accepting that the immunity principle applied between lawyer and client, it would apply a fortiori to protect counsel for the Crown from actions by an accused [66]. He then went on to consider the application of the immunity principle in Giannarelli. He then cited, with approval, the Master's statement of the duties of a Crown Prosecutor which was as follows[67]:

"The duty exists but it is not actionable. There is no doubt from the High Court decisions that no collateral proceeding is maintainable against the prosecuting officer in the conduct of the prosecution case. All the contentions put forth by the plaintiff are concerned with grounds of appeal. His remedy is to appeal to have his conviction set aside, but it would appear that he has had his day before the highest court in the land. He cannot bring an action for malicious prosecution or any action analogous to malicious prosecution for as long as his conviction stands. It would appear that he has exhausted all legal avenues. There is no other remedy open to him and the present action is not maintainable at common law".

346. The Chief Justice then quoted the learned Master's conclusion to the effect that the facts as pleaded did not disclose a cause of action, that the action was thus misconceived and could not be cured.

349. His Honour then considered the appellant's submission to the Full Court that the Crown Prosecutor "did owe a duty to an accused at common law, namely a duty to be fair." Counsel had relied on a statement about the role of the prosecutor in the dissenting judgment of Murphy J. in Alister v The Queen[68]. His Honour held that there was nothing in that judgment which would then support the submission that

"the prosecutor owes a duty to the accused, as distinct from a duty to the Court and in particular there was nothing in the judgment inconsistent with Deane J's statement in Whitehorn".[69]

353. After considering further arguments and authorities His Honour expressed the conclusion;[70]

"In my opinion, the decision of the learned Master, that the action was not maintainable so long as the conviction stood was clearly correct. I am also of the opinion that his decision, that the respondents as Crown Prosecutors did not owe the appellant any duty such as alleged in the statement of claim and were immune from suit in respect of anything said or done by them in court, or in relation to the conduct of the proceedings in which they acted as counsel, was in accordance with the course of decisions in the authorities to which I have referred and in particular, consistent with the principles stated in Munster v Lamb and Cabassi and Giannarelli".

357. His Honour then went on to consider in more detail the issue of immunity, an issue to which I will turn later in these reasons.

360. It is clear that the learned Chief Justice upheld the decision of the learned Master on three bases:

1. That the action was not maintainable as long as the conviction stood;

2. That there was no duty of the kind alleged in the statement of claim[71] owed by the prosecutor to the appellant; and

3. Crown Prosecutors were immune from suit in respect of the matters alleged.

366. Counsel for the DPP also relied upon statements in Richardson v R [72]where the High Court commented on the obligations imposed upon prosecutors to call evidence.

369. The High Court emphasised that it was for the Crown prosecutor to determine what witnesses would be called for the prosecution. The High Court stated;[73]:

"he has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused".

The Court developed this point further and then stated:

"it is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution".[74]

The Court then commented that this was not to suggest that the prosecutor's decision had the character of the exercise of a judicial discretion or discretionary power such as to make the decision reviewable - as such decision would be. It commented;[75]

"In the context the word "discretion" signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned".

"it is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. A misconception has arisen, we venture to think, from treating some observations in the decided cases, which have been made with intention of offering guidance to prosecutors and how they are to approach their task, as a prescription of an inflexible duty to call material witnesses, subject to certain exceptions or special circumstances".

379. Later, the High Court referred to the remarks of Fullagar J, in Ziems v Prothonotary of the Supreme Court of NSW[77] where Fullagar J, relied upon the statement of Lord Roche in Seneviratne v The King[78] which was as follows

"Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution".

383. In response, the High Court commented;[79]

"...it should be understood in the sense that it proffers advice to the prosecutor as to how he should approach his task and not as a rule of law formulating a duty owed by the prosecutor to the accused".

387. It needs to be borne in mind that the ground that was argued in the appeal in Richardson was that;[80]

"the crown prosecutor had failed in his duty to call a material witness, ....., that this failure had led to her being called as a witness for the defence, with a consequence that she had been exposed to cross examination by the Crown and that her evidence was less likely to be persuasive with the jury because it was associated with the presentation of the defence case, thereby placing the accused ....... at a disadvantage to which it would not have been subject had she given her evidence in the course of the Crown case".

391. It may be said that the High Court, in saying there was no duty to be exercised and no duty formulated as a rule of law, was responding to the attempt by the appellant to assert a duty to call a witness for breach of which he would be entitled to a retrial. The High Court was at pains to reject that proposition and emphasise the balancing process involved in the decision. It was central to the reasoning of the High Court to reject any suggestion that there was any rule of law requiring the prosecutor to call particular witnesses and it is in that sense that they denied the existence of a "duty". This appears in the reasons in the following passage:

"Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call particular witnesses, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole gives rise to a miscarriage of justice"[81].

396. Each of the above statements from Whitehorn, Love v Robbins and Richardson appears, on first reading, to place significant obstacles in the path of the plaintiff's argument that the obligation to disclose information is one that can be properly described as a duty owed to the accused. Counsel for the plaintiff, however, has raised a number of points in response which appear to me to be correct. In particular, the quoted passages do not impose an obstacle if they are placed in their correct context.

(a) in each of the cases, the court was concerned with the duty on the part of the prosecution to be fair in the conduct of the hearing and, in the High Court decisions, in particular, in the calling of witnesses. They do not consider the duty to disclose information;

(b) the duty to conduct a fair hearing and the duty to call witnesses are covered by the core immunity from suit - a point conceded by counsel for the plaintiff;

(c) the statements denying a duty, were denying that there was a duty which was actionable per se by the accused for breach. In no instance were the courts called upon to consider the present circumstances or cause of action;

(d) there was no finding of impropriety in any of the cases.

404. In the present matter we are concerned not with a case alleging an entitlement to damages for breach of a duty to be fair or breach of a duty to call witnesses - or for breach of a duty to disclose information. While full effect must be given to the above statements, they do not determine the question whether the duty to disclose is a duty of a kind that will attract the tort of misfeasance in a public office. While they may be authority for the proposition that the prosecution owes no actionable duty per se to an accused person to act fairly and no actionable duty per se to call witnesses, they do not determine the issue in the present case. That issue is whether, in failing to disclose relevant information in an allegedly deliberate or reckless exercise of a duty to do so, the fifth and sixth defendants may be sued for misfeasance in a public office. That duty is a distinct and separate one from those considered in the above cases and is not relied upon as being actionable per se for mere non-compliance.

407. What may be said to consistently flow from the above authorities is that:

"Breach of the duty to be fair cannot itself form the basis of a private cause of action...; it cannot give rise to a right in damages"[82].

In none of the cases was consideration given to the question whether there was a duty imposed on the prosecuting lawyers, not in itself actionable for breach, but which could form the basis for an action for misfeasance in a public office should that duty be breached as a result of deliberate or reckless actions. I was referred to judicial support for the view that it can.

412. One case is Grimwade v State Of Victoria[83]. In that case Harper, J. considered a number of difficult questions including the question whether misfeasance in a public office might be available as a valid claim in the event of breach by the prosecutor of the prosecutor's duties. His Honour commented as follows:

"I see no reason in principle, subject to the reservations expressed by Brett M R in Munster v Lamb (1883) 11QBD 588 at 604, why prosecutors should not be liable for wrongs inflicted maliciously in the course of the exercise or purported exercise of their authority.

416. In Bennett v Commissioner of Police for the Metropolis and Crown Prosecution Service,[84] Sir Richard Scott V.C. considered an application to strike out an action alleging, inter alia, misfeasance in a public office, negligence and abuse of process of the Court in respect of alleged improper conduct, inter alia, on the part of the Crown Prosecution Service, in securing the arrest of the plaintiff. After referring to an argument based on immunity from suit, Scott V.C. said;

"why should an action for misfeasance in a public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject to the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuse of their powers".

Reference should also be made to Elguzouli - Daf v Commissioner of Police[85] where Steyn L.J, acknowledged the potential liability of a CPS prosecutor for misfeasance in a public office [86].

Prosecuting Lawyers - are duties owed to the Public?

422. In R v Brown, Steyn LJ said that in considering the disclosure obligations of the Crown it is important to identify the context within which the common law rules developed[87]. He described that context in the following terms:

"The objective of the criminal justice system is the control of crime, but in a civilised society that objective cannot be pursued in disregard of other values. That everybody who comes before our Court is entitled to a fair trial is axiomatic. Lord Wilberforce stated in Raymond v Honey [1983] 1A.C. 1, 13, that the right of every citizen to unimpeded access to a Court is a basic right. Similarly, the right of every accused to a fair trial is a basic or fundamental right. That means that under our unwritten constitution those rights are regarded as deserving of special protection by the Courts. However, in our adversarial system, in which the police and prosecution control the investigatory process, an accused's right to fair disclosure is an inseparable part of his right to a fair trial. That is the framework in which the development of common law rules about disclosure by the Crown must be seen".

426. In Arthur J.S.Hall v Simmons Lord Hobhouse[88]described the criminal process as follows:

"Even though the criminal process is formally adversarial, it is of a fundamentally different character to the civil process. Its purpose and function are different. It is to enforce the criminal law. The criminal law and the criminal justice system exists in the interests of society as a whole. It has a directly social function. It is concerned to see that the guilty are convicted and punished and those not proved to be guilty are acquitted. Anyone not proved to be guilty is to be presumed to be not guilty. It is of fundamental importance that the process by which the defendant is proved guilty shall have been fair and it is the public duty of all those concerned in the criminal justice system to see that this is the case. This is the public interest in the system".

In the quoted passages, emphasis is placed on the importance of the trial being a fair trial and of fair disclosure by the prosecution as being an inseparable part of the accused's right to a fair trial. The Crown by withholding relevant information from the accused may prevent the accused from fully presenting his or her case and fully testing that of the Crown. This may be unfair to the accused and render the trial itself unfair. But I suggest it may also be seen as unfair that an accused person's fate should be decided after an inadequate examination of the facts. In addition, an inadequate investigation of the facts goes beyond unfairness and affects the very credibility of the trial. In any criminal trial, the ultimate decision is and appears to be based on findings of facts made on the basis of evidence presented and tested by the Crown and the accused. This process is fundamental to the credibility of the trial and, so, its outcome[89]. If the Crown withholds relevant information, the fact finding exercise is seriously compromised and the credibility of the trial can be destroyed.

431. In criminal proceedings in Victoria, it must be emphasised that, as appears to be the case in England, there is no entitlement to full discovery prior to trial.[90] Thus the accused is entirely dependent upon the prosecution for the disclosure of evidence and information necessary to ensure that the accused has a fair and credible trial. It can, therefore, be understood why for well over one hundred years it has been said that counsel prosecuting for the Crown is fulfilling the role of "a representative of the State, a minister of justice".[91] This is not merely a piece of rhetoric. As was stated by Newton and Norris, J. J., in R v Lucas:[92]

"It is very well established that prosecuting counsel are ministers of justice, who ought not to struggle for a conviction nor be betrayed by feelings of professional rivalry, and it is their duty to assist the court in the attainment of the purpose of criminal prosecutions, namely, to make certain that justice is done as between the subject and the State. Consistently with these principles, it is the duty of prosecuting counsel not to try and shut out any evidence which the jury could reasonably regard as credible and could be of importance to the accused case. We may add that these obligations which attach to prosecuting counsel apply, in our opinion, to officers in the service of the Crown whose function it is to prepare the Crown case in criminal prosecutions".

The Full Court of Western Australia in Love v Robbins[93]stated:

"In my view, however, a Crown Prosecutor is an officer of the Court and, as such, 'a minister of justice'. In that capacity he has a role in a criminal trial which is not accurately described as merely "one of the contending adversaries".

The Court then referred to the above passage from Lucas and stated that it was consistent with what Deane J had said in Whitehorn,[94] namely:

"Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and the standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one".

439. There can be no argument in my view that counsel briefed to prosecute, and a solicitor from the staff of the DPP instructing such counsel, hold positions in which they are performing a very significant public service for the whole community.

443. Counsel for the DPP and the fifth and sixth defendants argued that the reference to "duty" by the Full Court in Tampion v Anderson [95]was a reference to a duty to which is attached a right to sue for damages for breach. As counsel for the plaintiff pointed out, however, the Full Court could not have been referring to such a duty. If that was so, there would be no need for the tort of misfeasance in a public office.

446. Using the word "duty" in a non-legal sense, devoid of connotations of justiciability, prosecution lawyers may fairly be said to be under a duty to the public and to the court to conduct the proceedings fairly. They may also fairly be said, in my view, to be under a duty to the accused to conduct the proceedings fairly. That broad duty may be said to give rise to a further duty, relevant to the present case, to disclose relevant information to the accused. It is understandable that the term "duty" has been frequently used when describing the obligations of prosecution lawyers[96]. It is also an appropriate use of the term.

449. The legal concept of duty has been analysed by reference to sanctions.[97] If the existence of sanctions be necessary for identifying duties recognised by the law and the person or persons to whom they are owed, it may be said that there are sanctions available to both the accused and the community in the event of a breach of the obligation to conduct a fair trial and, in particular, breach of the obligation to disclose information. Those sanctions include the reference of unethical behaviour to professional disciplinary bodies, the quashing of the conviction in the event of the breach of obligation causing a miscarriage of justice and appropriate action during the trial by the trial judge to address any problems created[98]. It is understandable, therefore, that one finds in the judgments references to the obligations as a "duty".

PROSECUTING LAWYERS - HOLDERS OF "PUBLIC OFFICE" -

454. What the plaintiff has to establish is that the duty to disclose can fairly be described as a duty owed to the community and to the accused as a member of the community. For the foregoing reasons, that is the way the obligation may be fairly described, whether the concept of duty is used in a lay or legal sense. The duty requirements of the tort are satisfied.

457. The other requirement for a public office, that of remuneration from public funds, is also satisfied - both the fifth and sixth defendants were paid from public funds.

460. In conclusion, therefore, I am satisfied that the fifth and sixth defendants were at the relevant time holders of a public office for the purpose of the tort of misfeasance in a public office in that they were holding specific positions with defined and specialised roles;

(a) for which they were remunerated from public funds;

(b) in which they were performing public services, public services of great importance; and

(c) in which they owed a duty to both the community and to the accused, to disclose information of assistance to the accused.

466. The question that remains is whether the long established principle of immunity from suit protects them from an action brought for misfeasance in a public office in which it is alleged that they deliberately or recklessly breached the duty to disclose information to the plaintiff.

471. Counsel for the DPP submitted that barristers and solicitors are immune from action for anything said or done by them in the preparation for and in the conduct of criminal trials except for suits for malicious prosecution or for abuse of process[99] They described the immunity as a "core immunity". Counsel submitted that the immunity applies to actions brought for negligence and for misfeasance in a public office. Counsel for the fifth and sixth defendants adopted the DPP's submissions.

474. Counsel for the plaintiff submitted that core immunity could apply to suits for misfeasance in a public office, but that the alleged decision not to disclose information by the fifth and sixth defendants was a decision that fell outside the scope of the core immunity. In the alternative, he submitted that if the decision not to disclose the information would otherwise potentially come within the scope of the immunity, the immunity would protect only a negligent decision and would not protect decisions which constituted a misfeasance in a public office.

478. In putting forward these propositions counsel relied on both Australian and English authority. Counsel for the DPP submitted that an examination of the authorities revealed that the core immunity has been held to apply to the following;

* proofs of evidence for trial and statements made in a report to the Director of Public Prosecutions[100] which was part of the investigation of a possible crime for the purpose of a possible prosecution,

* a carelessly prepared post mortem report[101],

* conduct associated with exchange of information, theories and hypotheses between those investigating a crime and their colleagues, and between those investigating a crime and potential witnesses[102], extending a protection essentially to the person who is giving information but also protecting, perhaps from a public interest point of view, the exchange of theories which they should be able to exchange without fear of being sued, thus protecting things said.

484. The immunity has also been held to prevent any civil action for conspiracy by an unsuccessful litigant against witnesses whom he alleges have conspired together to give false evidence[103].

Application of Immunity to Misfeasance -State of Authorities.

488. Counsel for the DPP submitted that the core immunity provides immunity from suits based on misfeasance in a public office. Referring to comments in Munster v Lamb[104], counsel submitted that it was clear on the authorities that the presence of malice in itself did not remove a cause of action from the core immunity protection.

491. Counsel also referred to the judgment of McInerney J in Tampion v Anderson[105] where His Honour, at first instance stated;

"it was said by the defendants that the absolute privilege discussed earlier was not merely a privilege available as an answer to a claim for damages for defamation; it was an immunity for all kinds of actions founded on the doctrine of public policy. In my opinion this contention is correct".

495. He went on to say that the reason was not to provide a privilege to be malicious but to exempt judges, advocates, and litigants from an enquiry as to malice.

498. While it appears that His Honour held that the immunity applied to the claim for misfeasance in a public office in that case, the Full Court did not specifically address that issue. In any event, the allegations concerned the manner in which the inquiry was conducted. Further, the case did not concern the issue of non-disclosure by the Crown and ultimately, the immunity issue must be considered in that context.

501. Also of direct relevance is the decision of Harper, J. in Grimwade v State of Victoria[106]. In that case, in a wide ranging and detailed examination of the law, His Honour considered the question of whether prosecutors had an immunity from suit in respect of the tort of misfeasance in a public office. He expressed the opinion that there was no reason in principle why prosecutors should not be liable for wrongs inflicted maliciously in the course of the exercise or purported exercise of their authority but, in expressing that opinion, did so with a reservation referring to the reservations expressed by Brett, LJ in Munster v Lamb[107]. Counsel for the DPP argued that this was a reference to the proposition that counsel were immune from suit in respect of all court related work irrespective of malice, so that Harper, J. was doing no more than recognising that the immunity from suit for misfeasance in a public office did not extend beyond the core immunity. For the plaintiff, it was submitted that the reference to the reservations of Brett, M.R. was a reference to his reservations limiting the immunity to statements made in Court.

504. An examination of the cited page of the judgment of Master of the Rolls reveals that he was focusing on things said in Court. He referred to the difficulties for the advocate in the heat of argument to be troubled by concerns about whether what was being said was true or false, relevant or irrelevant and was concerned that in that situation the advocate could "have his mind so embarrassed" that he could not do the duty which he is called upon to perform. The Master of the Rolls commented

"the rule of law is that what is said in the course of the administration of law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness."

508. He then went on to reject the argument that the protection of the privilege ought not to exist for a counsel who deliberately and maliciously slanders another person, stating;

"the reason of the rule, is that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him".

512. In my view His Lordship was, if expressing a reservation, in the words of Harper, J., referring to an immunity that would continue for counsel for things said and done in court. It must be borne in mind that Munster v Lamb, which is the foundation judgment in the field of core immunity, dealt only with the issue of what was said in the courtroom. The immunity having then been recognised, it has since expanded. I suggest a fair reading of Harper J's remarks is that he was expressing the opinion that a prosecutor sued for misfeasance in a public office would be protected by the immunity in respect of anything said in the courtroom even if acting with malice. In any event Harper J's views are strictly obiter although, to my mind, highly persuasive.

515. To refer to His Honour's comments in full he noted that prosecuting counsel are absolutely immune from suit for malicious prosecution in the United States of America but not in Canada. After referring to Munster v Lamb and his view of principle he stated:[108]

"While the concerns of the Supreme Court of the United States about prosecutors becoming overly nervous have some force in relation to claims in negligence, they seem to me to have little to commend them when a wrong has been inspired by malice. Moreover, the authorities in Australia and the United Kingdom accept that a prosecutor is liable in an appropriate case in an action for malicious prosecution. In England there has been some uncertainty on the issue whether the immunity extends to the tort of abuse of a public office. Lord Hoffman in Taylor v Serious Fraud Office[109] noted the difference of opinion expressed in a number of decisions".

519. Sir Richard Scott V.C. in Bennett v Commissioner of Police for the Metropolis and Crown Prosecution Service[110] had to consider an application to strike out an action alleging, inter alia, misfeasance in a public office, in respect of alleged improper conduct in securing the arrest of the plaintiff. The defendants had argued that there was an overriding immunity from suit in any event. He turned to that issue. After reviewing relevant authorities his Lordship commented;

"counsel have argued that the established immunity from action based on evidence given in court proceedings and from a negligence action against the police or the CPS in regard to the manner of the discharge of their respective duties were all part of a general immunity that, for reasons of public policy, protects police and prosecutors from any action in tort based upon their discharge of their respective duties".[111]

He rejected this argument as, "wholly unacceptable".

524. After noting that the immunity was "attributable to the requirements of public policy", he went on:

"To argue that because for public policy reasons blanket immunity from action is given in respect of evidence in Court proceedings and because for public policy reasons the police and the CPS are relieved of a general duty of care to those who may be affected by the manner in which they discharge their duties it should therefore follow that the police and the CPS are entitled to a blanket immunity from suit arising out of the manner in which they discharge their duties is not, to my mind, respectable jurisprudence. On the contrary, it is clear that neither the police or the CPS are entitled to a blanket immunity against tort actions arising out of the manner in which they discharge their duties. Actions for malicious arrest or malicious prosecution can be brought. Actions against the police for assault, in using excessive force in effecting an arrest or interrogating a suspect can be brought. Why should an action for misfeasance in a public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuse of their powers".[112]

531. Subsequently, Lord Hoffman noted in Taylor[113] that there was some judicial disagreement as to whether the immunity applied to "the emergent tort of abuse of public office". He referred to Silcott v Commissioner of the Police of Metropolis[114] and the then Court of Appeal decision of Darker v Chief Constable of West Midlands Police[115] which held that the immunity principle applied, and Bennett[116], which held that it did not. He declined to express a view.

534. The most recent English consideration of the issue of the application of the core immunity principles to proceedings for misfeasance in a public office is found in the decision of the House of Lords in Darker v Chief Constable of the West Midlands Police[117]. In that case criminal proceedings brought against the claimants were stayed on the grounds of abuse of process and the claimants were discharged. They brought an action against the police for conspiracy to injure and misfeasance in a public office. Amongst other things, they alleged that the officers and the informant had fabricated statements. An attempt was made by the Chief Constable to have the statement of claim struck out on the basis that the action fell within the scope of the immunity principle. That application to strike out was initially successful and the matter came ultimately to the House of Lords on appeal by the claimants.

537. The DPP has relied upon the analysis of Lord Clyde. He argued that Lord Clyde laid the question to rest, holding that the core immunity in fact applied to misfeasance in a public office.

540. A fair reading of His Lordship's speech, and that of the other members of the House of Lords, would suggest that this proposition is correct in the sense that the House of Lords did not say that the immunity could not apply to conduct which amounted to misfeasance in a public office. In that particular case, however, it was held that the core immunity did not apply to a cause of action based upon the fabrication of evidence. The core immunity was generally referred to by the House of Lords as the immunity of witnesses. Their Lordships referred to the public policy purposes said to underlie that immunity. One was to protect the public participants in Court proceedings from being subjected to the vexation of defending actions for things said or done in Court, the purpose being to encourage honest and well meaning persons to assist the administration of justice, even if dishonest and malicious persons may on occasions benefit from the immunity. Lord Hope of Craighead quoted[118] Lord Hoffman in Taylor [119]that the absolute immunity rule;

"... is designed to encourage freedom of speech and communications in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say".

544. The other public policy adverted to was the concern to avoid a multiplicity of actions in which there might, inter alia, be collateral attack on a judgment or verdict which is still standing.

547. It may fairly be said that so far as English authority is concerned the possibility remains of the core immunity being successfully invoked in appropriate cases where a claim is brought for misfeasance in a public office. On the basis of the decision in Darker, it may be said to extend to allegations of misfeasance in public office arising out of the giving of and collection and preparation of statements of proposed evidence. It is not available where what is alleged is a fabrication of evidence - notwithstanding the difficult line drawing that their Lordships acknowledge.

550. In Australia in the current state of the authorities, it is necessary to go back to first principles and consider the underlying policy to determine whether immunity from suit extends to protect prosecution lawyers from claims for damages for misfeasance in a public office, where what is alleged is the failure by them to disclose relevant information that emerged in the course of the conduct of a criminal trial brought against the plaintiff.

554. Counsel sought to put their clients in the position where the opposing party carried the onus of persuasion on the question whether the core immunity applied. It seemed to me that this was a barren debate. The question to be answered is whether the so-called core immunity protects the fifth and sixth defendant from the cause of action brought against them. It is they who are claiming the privilege. Thus the matter should be approached, should it matter, on the basis that it is the fifth and sixth defendant who claim the benefit of the immunity.

557. It also is important to note that it has frequently been stated both in English and in Australian decisions that the case for granting an immunity restricting the right of a citizen to a remedy must be clearly made out[120]. It is accepted that a predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy. It is said that this is an ordinary feature of the rule of law and fundamental civil rights. So in Mann v O'Neill[121] the High Court stated;

"the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated".

562. It was common ground that the principal authority on the question of the limits of the core immunity in Australia is Giannarelli v Wraith[122].

565. It will be recalled that the question posed for the High Court in that case was whether a barrister or solicitor could be sued by his client for negligence in the conduct in court of the defence of criminal charges. Thus, the discussion of the core immunity by the members of the court took place in the context of an allegation of negligence and whether a duty of care arose. The accused had been charged with perjury in relation to evidence they had given in a Royal Commission. The negligence alleged was a failure to advise that the evidence given at the Royal Commission would not be admissible because of s. 6DD Royal Commissions Commissions Act (1902) Cth and a failure to object to the admission of that evidence on that ground .

568. Mason C.J.[123] referred to a longstanding immunity of the barrister from liability in negligence to the client "at least in respect of court work". After referring to historical reasons for the immunity, he commented that to be sustained now, it must "rest on considerations of public policy". He noted that various policy factors had been advanced but only two "warranted serious examination";

* "the peculiar nature of the barrister's responsibility when he appears for his client in litigation". * "the adverse consequences for the administration of justice which would flow from the relitigation in collateral proceedings for negligence of issues determined in the principal proceedings".

572. Dealing with the first factor His Honour commented on the unusual nature of counsel's responsibilities in that counsel owes a duty to the court as well as to the client with the former overriding the latter. After noting the variety of situations which counsel must deal with notwithstanding client's instructions including the selection of the number of witnesses, deciding what questions to be asked and what topics to be covered in addresses and what points of law to be raised, he commented that;

"counsel exercises an independent judgment so that the time of the Court is not taken up unnecessarily..."[124]

"the administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case."

580. He expressed concern[125] that there was a "real risk" that the existence of a potential liability for negligence would influence;

"the exercise of his independent judgment by making him more mindful of the need to avoid any possibility of liability to his client".

584. He suggested that it would be "little more than a pious hope" to expect that the conduct of a case would not be influenced by such potential liability and that while insurance would alleviate the problem it would not eliminate it. He concluded:[126]

"It follows that the exposure of counsel to liability in negligence for breach of a common law duty of care would create a real risk of adverse consequences for the efficient administration of justice. Litigation would tend to become more lengthy, more complex and more costly".

588. While acknowledging that it was a serious step to deny a litigant a cause of action for negligence, to do so was to allow to continue an exception in favour of counsel which was not for the benefit of counsel but to protect the administration of justice. He commented:[127]

"And the exception in favour of counsel is in conformity with the privilege which the law has always conferred in the interest of public policy on those engaged in the administration of justice, whether as judge, juror, witness, party, counsel or solicitor in respect of what they say in court".[128]

592. His Honour noted that the foundation for that principle was the perception that:[129]

"Great mischief would result if those engaged in the administration of justice were not at liberty to speak freely. The immunity is not confined to actions for defamation"

and quoted McTiernan, J. in Cabassi.[130] to the effect that the immunity applied to "any form of action".

597. The Chief Justice commented[131] that the need to protect freedom of speech in the Court likewise dictated a need to protect "the advocate's freedom of judgment with respect to what is said and done in court "and referred to the fear that if the rule were otherwise "numerous actions would be brought against persons who were merely discharging their duty".[132]

600. Turning to the other aspect of public policy he stated that it called attention to;[133]

"the impact on the administration of justice of allowing court decisions to become the subject of collateral attack by means of actions against counsel for in - court negligence".

604. He expressed[134] the opinion that rendering counsel liable for in court negligence would "unquestionably encourage litigation by unsuccessful litigants....." He argued that the central issue for decision in the secondary litigation would be whether, but for the negligence of counsel, a different result would have been obtained and that this question would be resolved by a different Court on materials that might well differ. This would undermine the status of the initial decision and there was a real prospect of inconsistent decisions being reached, decisions that were unchallengeable. He noted that;

"the impact of a successful challenge to a criminal conviction resulting in a sentence to imprison would be all the greater. It would be destructive of public confidence in the administration of justice. And for this very reason there would be a strong incentive on the part of a disappointed litigant to sue counsel for negligence as an indirect means of calling in question the decision in the initial litigation".[135]

He then commented[136] on the sometimes fine line between mere errors of judgment and negligent errors of judgment particularly in the area of tactical decisions about the conduct of the case.

609. His Honour then commented that the issue of liability for in-court negligence was one where he would not make a distinction between barristers and solicitors and that the reasons for holding a barrister was not under a duty of care applied with equal force to the solicitor who acts as an advocate. He said it is the "function performed, not the label attached, which gives rise to the limited immunity"[137] and expressed agreement with views expressed in Saif Ali[138] on this aspect.

612. His Honour then turned to the question of liability for work done out of Court. In opening his discussion on this issue his Honour noted that;[139]"

"the grounds for denying liability for in-court negligence have no application to work done out of court which is unconnected with work done in court: Saif Ali".

616. Thus the public policy considerations underlying immunity for in court negligence he said had no relevance to negligent advice in relation to out of court matters. His Honour then posed the question of where the line was to be drawn. He suggested that it would be artificial in the extreme to draw the line at the courtroom door and that preparation of the case out-of-court cannot be divorced from presentation in court and that, as a result;

"the immunity must extend to work done out-of-court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity".[140]

620. He then cited with approval the statement of McCarthy P in Rees v Sinclair [141]which has been frequently cited, with both approaches in Australian and English authorities as the test to be applied in determining where to draw the line. The passage is as follows;

"....the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be preliminary decision affecting the way that cause is to be conducted when it comes to that hearing".

624. The Chief Justice noted that this statement had been endorsed by four members of the House of Lords in Saif Ali.[142] He also noted that it was a statement made in a country where the legal profession is fused and this fact gave it added importance. He then went on to hold that the negligence complained of fell within the common law immunity.[143]

627. Wilson J. after considering the issues raised by the parties on the impact of s.10 (2) of the Legal Profession Practice Act 1958 (Vic) considered the position at common law[144]. He commented that the;

"public interest in the due administration of justice, as enunciated by Brett MR in Munster v Lamb in 1883, remains a valid and unifying theme for the various issues of public policy canvassed by the House of Lords in Rondel".

631. He then referred to the five distinct grounds of public policy advanced in the latter case in support of the immunity in respect of actions in negligence[145].

* Counsel would be tempted to prefer the interest of their clients and would be deflected from observing their duty to the Court;

* The adverse effect that the fear of litigation may have on the barrister's efficient conduct of the Court proceedings;

* Special character of the judicial process wherein judges, juries and witnesses are immune from civil action;

* The public interest centred in the finality of litigation.

639. His Honour commented that not all the considerations were of equal weight. He commented that there was no reason to suppose that counsel would be deterred from discharging a clear duty to the Court in preference to the client's wishes by the possibility of a negligence claim, counsel not in that situation being in any breach of duty to the client but referred to the difficulty sometimes in decisions that have to be made by counsel and said that:[146]

"But it is the threat of litigation, not the likelihood of defeating such litigation, which is material"

and referred to the consequent motivation of counsel to err on the side of caution by bending to the client's interests and prolonging the examination of witnesses and submissions to the Court. Thus he argued that the administration of justice would be placed at risk.

644. He rejected the "cab rank" principle as of little significance. He then turned to the problems then associated with "relitigation". He said that they provided a powerful argument for immunity. He said that;[147]

"if a negligence action succeeds, then the original decision, notwithstanding that it may have been affirmed on appeal, is necessarily tarnished by the later inconsistent decision".

648. Wilson, J. also noted that the result would have come without the involvement of the successful party in the negligence action and argued that these situations have the capacity to bring the administration of justice into disrepute. He saw this problem as being exacerbated in the case of a client who claimed to have been wrongly convicted by a jury because of counsel's negligence in conducting the trial. In that situation the questions, he argued, would involve "speculation upon speculation".[148] He had pointed out that the judge and jury could not give evidence presumably distinguishing a situation in a civil case where there may be at least reasons for judgment of the original trial judge. He drew attention to the different standard of proof applying in civil proceedings to criminal proceedings. He also commented that if a way were found to have the original conviction set aside notwithstanding earlier and unsuccessful appeals, the end result would be that the civil action was converted into a de facto avenue of appeal outside the carefully constructed statutory framework of criminal appeal. He referred to the long standing policy of the common law against allowing the re-trial of criminal cases by collateral means. He concluded by indicating that he saw the dangers for public confidence in the administration of justice resulting from a lack of finality of litigation as being most at risk if the appellant's arguments were accepted.[149]

651. Wilson, J. accepted that the law "ought not readily grant privileges or immunities." His Honour commented[150] that:

"Favouritism and the quality of treatment under the law are capable of breeding contempt for the law, particularly when it was perceived that those who are favoured are themselves lawyers".

"I accept that ordinarily there is a heavy burden of justification on those who claim an immunity or privilege".[151]

659. After referring to a lack of empirical evidence his Honour emphasised that ultimately the issue was the due administration of justice. His Honour commented[152]:

"The administration of justice is of transcendent importance to the public interest. If, as I think it does, the imposition of liability for in court negligence raises a real risk of grave damage to that public interest, or a serious loss of public confidence in the administration of justice, the counter-veiling considerations identified by counsel for the appellants cannot be allowed to stand in the way of recognizing an immunity from suits. It must always be remembered that the immunity is granted not for the benefit of counsel but in the interests to the administration of justice".

663. Brennan J accepted as relevant the policy considerations advanced by the Chief Justice in upholding that counsel had an immunity for "in Court" conduct.[153] He did so after referring to the importance for the administration of justice for counsel to be manifestly independent in representing their clients.

666. He rejected the notion of a duty owed to the client which was[154];

"seen to be separate from the primary duty of assisting to do justice according to the law".

670. Commenting that the two duties might not be wholly compatible, he said that[155];

"no duty to a client which stands apart from the primary duty can be allowed to impair performance of the primary duty"

and referred to the need for counsel, as well as witnesses and judges, to be able to perform their primary duties free from the "chilling threat of civil suit" by the parties to a litigation. He then stated that he would hold the common law to be[156];

"neither a barrister nor a solicitor may be sued by a client in respect of any act done or omission made in the conduct of the client's case in Court or in the making of preliminary decisions affecting the way the case is to be conducted when it comes to a hearing"

676. He commented that if counsel failed "to adhere to the standards of advocacy which the courts expect and on which they rely, there would be no justification for the immunity".[157] His Honour plainly saw the matters in question as coming within the common law immunity.

679. Deane J dissented in a brief judgment holding that barristers did not have immunity from liability to their clients for "in Court" negligence. [158]

682. Dawson J posed the question as being[159];

"whether in the state of Victoria a barrister is immune from liability for negligence in the conduct of his client's case in Court".

686. His Honour examined at length authorities relevant to the question and turned to the policy arguments advanced for the immunity. He first of all referred to the issue raised about potential conflict between the advocate's primary duty to the court rather than the client and how the advocate should not be hampered by the prospect of liability to his client for the wrong decision. His Honour noted that Lord Diplock in Saif Ali[160] was not impressed with that argument and commented[161];

"professional negligence consists of more than a mere error of judgment and I must confess that I find it difficult to see any inconsistency between the existence of a duty to the court and the existence of a duty of care to the client.

690. His Honour also rejected the "cab rank" issue as of any great force again agreeing with Lord Diplock in Saif Ali[162]. He then commented[163] that he thought that the issue of barristers being over cautious in their approach leading to unnecessary arguments, defences, questions and witnesses as being of more weight. He said not only might the client's interests be adversely affected but;

"the efficient conduct of the business of the Court would be likely to be impaired".

694. But a weightier conclusion in his mind was the opportunity for collateral attack on decisions of courts given by the availability of an action in negligence for the conduct of a case in court. He commented;

"not only would this mean relitigation of issues already decided, but the relitigation would be before a different tribunal after a lapse of time upon evidence which would not necessarily be the same. This would be bad enough after a decision in a civil case but would be intolerable in a criminal trial. The verdict of the jury would be impugned in a Court of law and yet assuming all avenues of appeal to be exhausted, it would remain with all its consequences".[164]

698. He noted that there may be cases where the negligence leading to a miscarriage of justice would lead to a quashing of the conviction but that there would also be cases where the collateral proceedings would raise matters not capable of affecting the original verdict. He commented;

"nothing could be more calculated to destroy confidence in the processes of the courts or be more inimical to the policy that there be an end to litigation. If the decision of a Court is wrong the appeal process is the means by which it should be corrected. To allow the courts to be used to undermine its authority in other proceedings is clearly not in the public interest".[165]

702. He suggested[166] however that the "most cogent consideration" was the policy articulated in Munster v Lamb and Cabassi v Vila that all participants in Court hearings be immune from suit. His Honour commented[167] that it is the contemplation of both ill founded and soundly based litigation which;

"must be likely to hamper an advocate's efforts so as to deprive the administration of justice of the assistance which it might otherwise expect. In this respect the practice of the profession of an advocate differs from the practice of other professions. To err on the side of caution is not only practicable but ordinarily the best course with other professions. With an advocate this may be fatal, not only to the interests of the client, but also to the proper determination of the case".

706. Toohey J, with whom Gaudron J agreed, determined the matter by applying s.10(2) of the Legal Profession Practice Act 1958 (Vic)which he held determined the issue.

710. The majority of the High Court supported the application of the immunity to allegedly negligent acts and omissions in the conduct of litigation in court on the basis of the underlying policy concern for the due administration of justice. Two principal factors may be identified as putting the due administration of justice at risk. The first was that the imposition of a duty of care could affect decision making and freedom of judgment and could create a conflict of duties. This, reinforced by the fear of litigation, would carry with it the likelihood of an excessively cautious approach by lawyers in favour of their clients. The excessively cautious approach, it was thought, would be likely to result in more lengthy, complex and costly litigation. The other factor was the damage that could be done to confidence in the administration of justice by collateral attack on civil judgments and, particularly, criminal convictions and the likelihood of different results. The likelihood of different results is a real one because there will be different evidence, a different tribunal and different parties. Where the decision challenged is a criminal decision, there will be different standards of proof.

713. As to the test to be applied in deciding whether the immunity attaches to acts or omissions out of court, three members of the court treated the "intimate connection" test propounded in Rees v Sinclair[168] as good law[169]. In addition, a majority of the High Court appeared to accept the majority analysis in Saif Ali in the House of Lords in England, and did so without expressing any qualification of the result[170]. Assuming that their Honours' agreed with the outcome of Saif Ali, it is instructive to note that in that case the alleged act of negligence concerned advice as to the joinder of parties and available causes of action. The House of Lords held that such advice did not come within the protection of the immunity because it could not be said to be a preliminary matter affecting the way that the cause was to be conducted when it came to a hearing.

The Intimate Connection Test - Examples of its Application

717. The application of the "intimate connection test" has been considered in relation to a number of different types of conduct on the part of barristers and solicitors. The results have differed.

(a) Alleged negligent failure to plead the plaintiff's claims adequately.

In Keefe v Marks,[171] the New South Wales Court of Appeal by majority held that a failure to plead a claim for interest resulting in rejection of a claim for interest was covered by the immunity. In Yates Property Corporation (in liquidation) v Boland,[172] the Full Court of the Federal Court commented on the consequences of not pleading a head of damages and the application in that situation of the "intimate connection" test;

"Such a complaint is concerned with conduct that is not in any relevant sense inextricably linked with the presentation of a case in Court in that it affects the way in which the case is to be conducted in Court. True it is that the conduct may dictate the way in which a case is run in the sense that a particular head of damage will not be claimed. But it is not intimately connected with any particular conduct that takes place in Court so that it might be described as a preliminary decision, that is a preliminary to decision-making that takes place in Court[173]".

(b) Alleged negligent advice as to availability of cause of action or head of damages.

In Macrae v Stevens,[174] the Court of Appeal left open the question of whether immunity applied where the negligent conduct in question was advice as to the availability of a cause of action, saying it was arguable. In Yates v Boland, however, the Full Court of the Federal Court expressed the view that it did not think that that conclusion was correct saying it was inconsistent with Saif Ali. It stated[175]:

"The case stands as authority for the proposition that the barrister will not take the benefit of the immunity if he negligently fails to advise on the existence of cause of action and against whom that action lies**".**

"Advice concerning the existence or otherwise of a cause of action has no relevant connection with the in-court conduct of counsel in the sense that no action of counsel in court depends on that advice or the failure to give it. The in-court conduct is not dependent on the failure to plead a case against a particular defendant, nor is it dependent upon the failure to plead a cause of action against an existing defendant. The same is true when the complaint is that an item of damage should have been but was not included in the claim".[177]

(c) Alleged negligent advice re limitation periods and their consequences.

In Macrae v Stevens[178] the Court of Appeal left open the question whether a failure to advise about the date of expiry of a relevant limitation period would attract the immunity.

(d) Alleged negligent advice as to choice of forum

In Macrae v Stevens[179] it was held that advice that a proposed proceeding would have to be issued in Queensland was not protected by the immunity. It was stated:

"It did not involve advice as to choice of forum for tactical reasons such as the possibility for obtaining higher damages in one or other jurisdiction ..., or because of the availability of procedures in a particular jurisdiction which might have been thought advantageous to the client. The effect of the advice was simple. Queensland was the place where the client had to proceed. It was implicit in that advice that there was no other jurisdiction in which the claim could be brought. In my opinion it would be an artificial construct to say such advice leads to a decision affecting the conduct of the case in Court merely because it can be said to have a connection with the litigation". In conclusion, it was stated that the conduct did not fall within the test enunciated by Mason J and was not required by policy considerations "based upon the proper and efficient administration of justice".[180]

(e) Alleged negligence in carrying out instructions for settlement.

In Donellan v Watson[181] the Court of Appeal considered a claim for damages for alleged negligence by the plaintiff's solicitors in failing to carry an authorised compromise into effect. Handley, JA took the view that the matter was one to be dealt with according to the principles of agency law. Mahoney, JA and Waddell, AJA held that the proceedings did not fall within the rationale of the reasons for which the immunity was given.

(g) Conduct of Criminal Trial.

In Love v Robbins[182] it was held that immunity applied to the manner in which criminal proceedings had been conducted in court.

(h) Alleged negligence in failing to commence proceedings within limitation period.

In Macrae v Stevens[183] it was noted that there was ample authority that a solicitor is liable for failing to commence proceedings for a client prior to the expiry of a relevant limitation period and the question was raised of whether a solicitor might, therefore, be liable in negligence for failing to draw a client's attention to the imminent expiry of a relevant limitation period and whether, therefore, a barrister briefed to draft the relevant proceedings was not[184].

(i) Dilatory handling of litigation

It is accepted that solicitor and counsel are liable in negligence where their dilatory handling of a civil action results in that action being dismissed for want of prosecution. Usually the dilatoriness will relate to the interlocutory stages, including discovery.

Applying the test - Parties' Positions.

737. Assuming that core immunity can apply to acts of alleged misfeasance in a public office, it was put for the DPP and the fifth and sixth defendants that the omission alleged against the fifth and sixth defendants related to information that was relevant to the defence of the revenge rape, or alternatively, required to be disclosed for the plaintiff to have a fair trial. Counsel argued that accordingly it was intimately connected to the conduct of the rape trial and so attracted the core immunity.

740. For the plaintiff it was submitted that the non-disclosure of the information was not something that affected the presentation of the prosecution case and that it was essential in applying the so-called core immunity that it be demonstrable that the act or omission complained of was "intimately connected" to the presentation of that case by the person or persons for whom the immunity from suit is claimed.

744. Obviously the information was relevant to the issues in the revenge rape trial and in that sense was "intimately connected" to the conduct of that trial. In my view, however, that is not sufficient. The argument for the DPP and the fifth and sixth defendants did not take the connection beyond that except to say that the conduct was "intimately connected" to the presentation of the defence case. Connection with the presentation of the case in court by the prosecution could not be established. That is essential having regard to the underlying rationale which is concerned, in the present circumstances, with the impact on lawyers, for whom immunity is claimed, in the conduct by them of a case in court. It is not a "preliminary decision affecting the way the cause is to be conducted at the hearing"[185].

747. On proper analysis it seems to me that what is involved is an issue of discovery and discovery cannot be said to be "intimately connected" to the presentation in court of the case of the party giving discovery.

750. I turn to the competing arguments about the underlying policy rationale and the question whether they support this conclusion.

Policy Arguments - What conclusion do they Support?

755. Counsel for the DPP and fifth and sixth defendants argued also that immunity is supported having regard to the policy considerations that are relevant:

1. In discouraging a civil remedy in that situation, the immunity will protect the most innocent of counsel from being harassed with suits and so will enhance the independence of counsel necessary for the discharge of the prosecutorial duties. It is put that the issue of disclosure or non-disclosure is a difficult one at times and errors can be made. It is put that the drawing of a line between negligence and recklessness is often difficult[186].

2. Providing immunity in this situation avoids placing the prosecutor in the situation where the prosecutor has to have regard to two or more competing or legitimate interests with penalties being imposed if one is favoured over the other.

3. As to disclosure of information, it is put that liability to civil action is likely to cause those with the decision making power on disclosure to take a defensive approach which could lead to inappropriate disclosure and cause proceedings to become unnecessarily lengthy, complex and costly.

4. The immunity encourages freedom of speech and communication in judicial proceedings by relieving those who take part from the fear of being sued. By encouraging freedom of speech and communication the immunity assists in the ascertainment of the truth in criminal proceedings which may ultimately affect the liberty of the subject.

5. Reliance is placed on the public interest in there being a finality to litigation and in avoiding a collateral attack upon convictions by means of civil proceedings.

6. Immunity protects persons acting bona fide from the burden of defending vexatious claims.

7. Conferring immunity will minimise unnecessary expenditure on civil litigation which would be better spent in handling the criminal litigation.

765. The first three propositions relate to the first policy concern identified by Mason, CJ in Giannarelli. The fifth and sixth mentioned relates to the second policy concern. The seventh proposition assumes that any civil litigation expenditure would be unnecessary - an issue to be determined. As to the fourth matter raised, it may be said, in my view, to support the argument against immunity where what is in issue is the prosecution's duty to disclose information. By encouraging disclosure there is encouragement of communication and the supplying of information relevant to the ascertainment of the facts in criminal proceedings which may ultimately affect the liberty of the subject.

Counsel for the plaintiff, on the other hand, submitted that public policy did not support application of the immunity to deliberate or reckless non-disclosure by the prosecution lawyers of information relevant to the trial of an accused person.

769. Counsel for the plaintiff criticised a number of the policy arguments, in part relying upon statements in Arthur J.S. Hall & Co v Simons[187] where a majority of the House of Lords decided to remove immunity in respect of negligence alleged in the conduct of civil and criminal litigation. While those comments are of relevance, it appears to me that I should proceed in this matter by considering the policy concerns and objectives outlined by the High Court.

772. In substantive response, the plaintiff pointed to issues of public interest supporting the proposition that the immunity claimed should not be granted. The plaintiff identified the following:

1. That people who suffer injury by reason of others tortious conduct should be able to recover compensation.

2. To render counsel and solicitors liable to civil damages will render it less likely that they commit tortious acts.

3. It is unlikely that the floodgates will open. If they do it may only indicate that there is a need for the capacity to sue.

4. That times have changed and lawyers no longer enjoy the same privileged positions that they have done. Further the scope for potential liability has increased and continues to do so in line with community expectations.

5. Potential defendants are able to protect themselves with insurance and, as to people carrying out public duties, it is put that it is to be expected that the State will provide assistance in defending the claim.

A number of the issues raised by the plaintiff do not, I think, advance matters. The immunity is concerned ultimately with enhancing the due administration of justice and whether insured or not, or defended by the State, the impact upon the due administration of justice of actions in negligence or for misfeasance in a public office upon solicitors and prosecutors may still be adverse in the ways identified by the High Court. To speak of times changing and lawyers no longer having the same privileged positions is, with respect, to beg the question.

782. One of the difficulties in analysing the arguments advanced by the parties is that they tended not to distinguish between claims in negligence and claims for misfeasance in a public office - in particular, where the alleged misfeasance is non-disclosure of information by the prosecution.

785. This distinction in my view is important when one is considering the policy issues. For example, in considering the argument advanced for the fifth and sixth defendants and the DPP about the undesirability of creating a situation of conflict for the prosecutor and the solicitor instructing, that argument has considerable force when considering a claim alleging negligence in the conduct of a criminal trial but considerably less force when considering a claim for misfeasance in a public office by non-disclosure.

788. The importance of the distinction is exemplified by Elguzouli-Daf v Commissioner of Police[188]. The policy factors held relevant to immunity of the CPS from suit in negligence discussed by Steyn, L J., in that case were problems associated with the defensive approach to duties, prosecutors acting with a view to protecting themselves, the CPS expending time and resources to guard against law suits rather than prosecuting, and in dealing with an "avalanche" of proceedings. It is significant, however, that while Steyn L.J. saw those factors as leading to the conclusion that a duty of care should not be imposed on the Crown Prosecution Service he did not see them as ruling out the tort of misfeasance in a public office which he saw as potentially available.[189]

791. In a claim in negligence, the plaintiff is alleging a specific duty of care owed to the accused to be added to the duty of fairness. The prosecutor and the solicitor instructing are already in something of a conflict situation addressing their duties of pursuing a conviction and conducting a fair trial[190]. To impose a duty of care, however, which requires them to consider solely the interests of the accused, changes the situation so far as duties are concerned and creates a conflict of duties. In Grimwade v State of Victoria[191], Harper, J stressed that;

"the prime duty of State appointed prosecutors is to prosecute, albeit as Ministers of Justice".

and rejected [192]the imposition of a duty of care on prosecutors in relation to;

"the continuance and - or carrying on of criminal proceedings"

because of the conflict that would create with the duty owed by prosecutors to the State to prosecute with an appropriate vigour. His Honour commented[193];

"the law should be meticulously careful to avoid the imposition of conflicting yet inescapable duties on the same person. Nobody should be damned if they do and damned if they do not".[194]

On the other hand, as already noted, his Honour could see no reason in principle why prosecutors should not be liable to actions for misfeasance in a public office-at least to a limited extent.

800. Rendering prosecutors and their instructing solicitors liable for misfeasance in a public office would not involve the imposition of any additional duties. What it would do, in the present case for example, is impose a further sanction on them for non-compliance with the duty to disclose information.

803. The distinction between claims in negligence and misfeasance in a public office is also important in considering the critical public policy concerns of achieving finality in litigation and avoiding collateral attacks on decisions of courts, particularly convictions. A claim alleging negligence in the conduct of a criminal trial plainly can be made notwithstanding that the conviction has not been quashed. It would be most unlikely, however, for a claim for misfeasance in a public office in respect of non-disclosure of evidence by the prosecution to be able to succeed in the absence of a decision by an appellate court to quash the conviction; for there would, typically, be no damage unless that occurred. There is also greater scope for claims for damages for negligence as against claims for damages for misfeasance in a public office. These and other issues are considered in more detail below.

806. What must be considered are the policy issues that arise when considering whether the prosecuting lawyers should be immune from a suit for alleged misfeasance in a public office for non-disclosure of relevant information to the accused.

810. The underlying policy concern that supports immunity from suit is the due administration of justice. The authorities suggest that it is important to consider whether the due administration of justice could be adversely affected in at least three ways; whether it could-

(1) lead prosecuting counsel and instructing solicitor to err in the exercise of their duty to conduct a fair trial in favour of the accused in such a way as to prejudice the outcome or cause unnecessary delay and expense;

(2) give rise to collateral attack on decisions of the Courts by later civil proceeding in which the evidence of necessity will be different and the standard of proof less and the parties different;

(3) give rise to re-litigation which can itself be damaging to the due administration of justice but also would expose people discharging public duties to the vexation of civil suit.

I will consider the second and third points first; for the reality of those points will affects one's view of the first point.

Immunity - to prevent collateral attack?

816. We are concerned in this case with litigation in which it is alleged that, deliberately or recklessly, the lawyers for the Crown did not disclose information to the accused. Several situations may be considered.

819. If at the end of the trial the accused is acquitted, or the accused is convicted but the conviction is quashed on appeal, there will be no decision under collateral attack. There might be limited re-litigation but there will be no loss or damage suffered unless the plaintiff can establish a causal link between the non-disclosure and some loss, such as time spent in custody after the time when the disclosure should have occurred, or lost opportunities of employment or loss of salary during such period.

822. There remains the situation where the accused is convicted and the conviction is not quashed on appeal. The plaintiff complaining of a non-disclosure would, in the typical case, be seeking to challenge the original verdict in civil proceedings on the grounds of non-disclosure, having failed to do so successfully on appeal. This will involve a collateral attack. In that situation, however, the defendants can invoke the principle stated in Hunter v Chief Constable of the West Midlands Police Anor[195] to have the civil proceedings dismissed or stayed.

825. In Hunter it was held to be an abuse of process to attempt to re-litigate an issue that had been previously decided by a court of justice. The plaintiff was one of the "Birmingham Six". At his trial, he and the other accused had alleged that their alleged confessions were induced by violence. The trial judge, however, found against them and held that the confessions were voluntary. The allegations of the accused were repeated before the jury but they were convicted. Hunter, in his civil proceedings, sued the police officers for damages for assault based on the alleged violence. In the House of Lords it was held that the statement of claim should be struck out as an abuse of process. Lord Diplock gave the reasons of the House of Lords stating that the proceedings had been initiated;

"for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the Court by which it was made".[196]

It would appear that by reference to a final decision, Lord Diplock was referring to the finding that the confession was admissible and took the view that it became final once the guilty verdict was received and the sentence pronounced.

830. After stating the above proposition of law, Lord Diplock went on to express his own conclusion about the purpose of the proceeding and did so in strong terms. He said[197];

"It would call for a degree of credulity too extreme to be expected even from judicial members of your Lordship's House to fail to recognise that the dominant purpose of this action, and the parallel actions brought by the other Birmingham Bombers so far as they are brought against the police, has not been to recover damages but is brought in an endeavour to establish, long after the event when memories have faded and witnesses other than the Birmingham Bombers themselves may be difficult to trace, that the confessions on the evidence of which they were convicted were induced by police violence, with a view to putting pressure on the Home Secretary to release them from the life sentences that they are otherwise likely to continue to serve for many years to come".

His Lordship then went on to comment that collateral attack on a final decision of a court of competent jurisdiction can take a variety of forms and later commented that;

".....it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil action, were to be permitted to set up in that action the same case, that must have been decided against him not only once but twice, even though technically it was only the first of those decisions that eventually qualified as a final decision against him by a competent court upon the very question that he seeks now to raise".[198]

Thus, it seems to me on a fair reading of His Lordship's speech in Hunter that the abuse of process argument was satisfied, in his view, if it could be demonstrated that the purpose of the subsequent proceedings was to mount a collateral attack on a final decision against the intending plaintiff. In addition, the abuse was seen by Lord Diplock to be exacerbated by the underlying purpose or motive of seeking to pressure the Home Secretary into releasing Hunter from a life sentence.

Hunter was followed in Bryant v Collector of Customs [199]. In that case the principle was used against the Crown who sought in subsequent proceedings to use statements that had previously been ruled inadmissible in earlier criminal proceedings. In Rogers v The Queen [200], a majority of the High Court comprising Mason, C.J., and Deane and Gaudron, JJ, held that it was an abuse of process for the Crown to tender the records of interview which had previously been ruled inadmissible in a criminal trial because to do so was a direct challenge to the earlier determination. In doing so they followed Bryant v Collector of Customs [201]. Hunter's case does not appear to have been analysed in any detail in Rogers v The Queen except by McHugh, J in his dissenting judgment. Brennan, J[202] referred to Hunter's case and Bryant on the issue of whether a decision that evidence is inadmissible becomes a final decision beyond recall once a verdict is entered. Deane and Gaudron, J J cited those two cases as authority for the proposition that;

"....it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud".[203]

McHugh, J. expressed concerns about treating, as an abuse of process, proceedings which involved a challenge to an interlocutory decision as opposed to a decision on an ultimate issue. He suggested that the decision in Hunter was best explained and justified on the grounds that the civil action was brought for an improper purpose of putting pressure on the Home Secretary to review the plaintiff's conviction for murder. An alternative basis, he suggested[204] was that it is an abuse of process to attempt to re-litigate a decision that was not a final decision when from a practical point of view the decision is determinative of the ultimate issues.

840. Notwithstanding any uncertainty created by the above comments, it remains a valid proposition that a collateral attack on a final decision is an abuse of process and the defendant sued in that situation is entitled to have the proceedings dismissed as an abuse of process. Prosecuting lawyers sued for misfeasance in a public office because of non-disclosure of information will be entitled to a dismissal or stay of proceedings for abuse of process, where the plaintiff has been unable to have the conviction set aside for non-disclosure. They will also be able to argue that no loss was suffered. Summary judgment would be available on those bases. On the other hand, if an action is brought following acquittal or quashing of conviction, there will not be a collateral attack on any conviction or earlier decisions of the court and thus the public interest in not permitting collateral attack does not arise.

843. The effectiveness of the Hunter principle was considered by the House of Lords in Arthur J.S. Hall and Co v Simons [205]. Lord Millett, Lord Hoffman, Lord Steyn and Lord Browne-Wilkinson held that the immunity of lawyers from suit by a client for their conduct of civil and criminal proceedings should be removed. One of the factors that influenced their decision was the fact that the principle in Hunter, along with new civil powers enabling judges more readily to dismiss civil actions, in their view, adequately dealt with the public policy concern of avoiding collateral attack on decisions of courts. Lord Hobhouse, Lord Hutton and Lord Hope of Craighead took a different view in relation to the immunity attaching to the conduct of criminal proceedings. They saw the Hunter principle as inadequate. Lord Hope of Craighead for example,[206] while acknowledging that it would be available to the lawyer sued, as a means to stay an action, took the view that the protection was not complete. Examples included actions in negligence concerning acts or omissions which caused delay or time in custody or loss of income and which did not affect the outcome of the original criminal trial but caused loss and damage nonetheless. He also referred to the situation where a conviction is set aside but not on the basis of the act of negligence complained of, in circumstances where the acts or omissions constituting the negligence, for similar reasons, caused loss and damage. In referring to Hunter's case, he pointed out that what was involved was a re-run of an issue that had been determined specifically at the original trial. He also argued that an argument to stay a proceeding on the grounds of abuse was likely to be more difficult to run and determine than an argument based on immunity from suit.[207]

846. Accepting the examples given as cases where an abuse of process argument would not be open, it must also be borne in mind that they do not involve a collateral attack upon a decision of the courts. Thus, while the Hunter principle cannot perform the same role as the core immunity, it does not claim to do so. Its significance from a policy point of view in the present context is that, where a lawyer for the prosecution is sued for misfeasance in public office for non-disclosure of information relevant to the outcome of an earlier trial, any attempt thereby to attack the conviction collaterally can be met by an argument that the proceeding is an abuse of process in cases where the original conviction still stands. Thus, this very important policy consideration is largely irrelevant in such cases. If on the other hand, there has been an acquittal or the quashing of the conviction there is no collateral attack involved.

849. Before leaving this aspect, I note that the Hunter principle does not seem to have been referred to in argument in Giannarelli. In that case, however, the accused had succeeded in having the conviction quashed and, therefore, there was no decision extant to be collaterally challenged. Whether consideration of that principle would affect the views of the present High Court remains to be seen. As far as the present case is concerned, however, it is not concerned with problems posed by negligence actions. It is concerned with the question of whether immunity should attach to non-disclosures of information allegedly amounting to misfeasance in a public office.

854. There will be a relitigation involved to some extent but it will be relitigation involving an important factual issue that was not part of the earlier litigation and one raised in a claim alleging misfeasance in public office. As to relitigation in Arthur J. S. Hall[208] Lord Hutton argued that;

"....it is not right that a person performing an important public duty by taking part in a trial should be vexed by an unmeritorious action ...."

He saw this as a separate concern. He said that the law should recognise that;

"...those discharging important public duties in the administration of justice should be protected from harassment by disgruntled persons who have been tried before a criminal court".

Accepting that proposition, it does not follow that there should be a blanket immunity from suit. I note that Lord Hutton's concerns related to actions for negligence.[209] In addition, other solutions are available.

861. Their Lordships appear to have been divided about the extent to which there was a risk of vexatious civil suit. I note that Lord Hutton appears to have been of the view that:[210]

"Counsel who defend in criminal proceedings are at greater risk of harassment from vexatious actions than counsel who appear in civil proceedings because the unpleasant, unreasonable and disreputable persons, to whom Lord Pearce refers, are more likely to be defendants in criminal cases than parties in civil cases".

865. Accepting, for present purposes, the accuracy of that assessment, there are also "unpleasant, unreasonable and disreputable persons" caught up in the civil litigation system and they may have more resources than the defendants to criminal proceedings. The problem of vexatious litigation, I suggest, arises more from the unsuccessful litigant who becomes obsessed with the loss at the original hearing, whether it be a civil or criminal trial.

868. Relitigation is, however, a concern. The people involved in the original proceedings, including victims of the crime will be called upon to revisit the events in question, and their previous evidence, and undergo the stress of a second trial. To litigate again without good reason can bring the legal system into disrepute. Finality to litigation is desirable and is, of course, a very important matter to consider. But where a person has suffered loss and damage as a result of misfeasance in a public office, re-litigation may be a consequence that should be accepted because of the public interest in ensuring that persons who have suffered loss or damage as a result of unlawful activities should have a remedy, particularly where the activities were those of a person in a public office. There is also a public interest in those holding public office being held accountable for abuse of their office.

871. In the circumstances with which we are concerned the Hunter principle can be used to filter out those cases where a conviction has not been successfully challenged. Further, the cause of action is much more confined than the cause of action in negligence, discussed in Arthur J. S. Hall. The plaintiff will need to be able to establish an intentional or reckless breach of the duty to disclose information and that there was some loss suffered as a result of such non-disclosure. Thus the area of potential vexatious litigation is significantly confined and opportunities will be present to summarily deal with any litigation that is vexatious.

874. In practical terms, what the law would leave in place would be the possibility of civil litigation that was not a collateral attack on a conviction where it is alleged that an accused person suffered loss as a result of the deliberate or reckless breach of the duty to disclose imposed upon prosecution lawyers. The occasions for such litigation would be rare but important.

Immunity - to avoid negative Impact on Conduct of Criminal Trials?

881. As to whether a liability for damages for misfeasance in a public office might lead to an inappropriate performance of the obligations imposed on prosecution lawyers, it can be argued that one result would be to cause prosecution lawyers to be overcautious and make available information to the accused which they would not otherwise have done and that this could have adverse consequences for the due administration of justice. There are several points to consider:

(a) Pressure likely to lead to excessive caution?

(i) The potential sanctions of civil liability would not operate in a vacuum. There are subtle but significant psychological forces operating in the opposite direction on prosecuting counsel and solicitors. There is always a psychological tendency to identify with the side one is representing. That can increase over time with further representation of the same side. In addition no lawyer likes to "lose " a case. These subtle but strong countervailing forces should not be overlooked.

(ii) Prosecuting counsel and solicitors will be aware that as long as they conscientiously go about the task of determining what information to disclose, there will be no liability.

(iii) In any event, one might wonder at the reality of the argument based on the notion of counsel and solicitor feeling threatened in some way by the limited risk of suit . The criminal jurisdiction is not one where you find faint hearted practitioners.[211]

I refer to the affidavit material filed by the DPP referred to above[212]. No adverse consequences resulting from the current practice of erring on the side of disclosure have been identified for the conduct of trials. No practical difficulties were identified. The practice is a responsible and sensible one.

I would not expect recognition of civil liability for intentional or reckless non-disclosure to cause any change to the current practice and the outcome of its application. The possibility exists, however, that recognition by the courts of such civil liability may result in inappropriate disclosures. In my view, such a possibility is extremely remote and the negative consequences likely to be minimal. The worst that can happen is that, in the rare case where the issue arises, information of minimal relevance or of questionable credibility will be made available. Not all of that information will be used by the accused. If it is, it may add some time and cost to the litigation, although, overall, that is likely to be minimal. As to the impact on the tribunal of fact of the accused using evidence of minimal relevance or credibility, I believe that experience shows that, be it judge, magistrate or jury, each is well able to sort the wheat from the chaff.

Administration of Justice - Negative Impact of allowing Immunity

891. In view of the weakness, in the present context, of the arguments advanced in support of immunity, allowing immunity could significantly damage the due administration of justice by bringing the law into disrepute.

894. First, in allowing immunity, the Court would be seen to be accepting the proposition that officers of the Court,

* entrusted with a fundamental public duty to disclose information to ensure a fair trial and

* who deliberately or recklessly act in breach of that duty, and so damage the due administration of justice in the particular case,

should not be held liable to compensate an accused who may have suffered severe damage to reputation and loss of liberty. Moreover, by allowing immunity, the Court would be seen to condone such behaviour by its own officers.[213]

900. Secondly, it is important for the acceptance of the law in the community that the law not be seen to operate in an unfairly discriminatory manner when dealing with issues of professional default. Allowing immunity would carry the risk of giving the impression that the law favoured legal practitioners in public office over other persons in public office. This would bring the law into disrepute. I note that this was a concern of a number of their Lordships in Arthur J.S. Hall[214]. Lord Hoffman[215] stated that any exception to the rule of English law that a remedy in damages is provided for a person who has suffered injury as a result of professional negligence requires sound justification because:

"Otherwise your Lordships would fail to observe a fundamental principle of justice which requires that people should be treated equally and like cases treated alike".

904. He went on to say that the arguments to support the immunity must be strong enough to convince "a fair minded member of the public" if the law is not to be brought into disrepute.[216] Lord Steyn[217] also commented that:

"One of the functions of tort law is to set external standards of behaviour for the benefit of the public".

suggested that immunity would have unfortunate consequences;

"... most importantly, public confidence in the legal system is not enhanced by the existence of the immunity. The appearance is created that the law singles out its own for protection no matter how flagrant the breach of the barrister. ... It tends to erode confidence in the legal system if advocates, alone among professional men, are immune from liability for negligence".[218]

910. It was one concern, along with others, which prompted Kirby J in Boland v Yates Property Corp. Pty Ltd [219] to comment:

"But the proper accountability of advocate advisers, the protection of the public and a non-discriminatory application of general principles of legal liability to the law's own profession suggest to my mind that the immunity has been pushed far beyond its essential ambit".

Administration of Justice - Positive impact of not allowing Immunity

915. At the same time it may also be said that not extending immunity in the present type of case has the potential to advance the due administration of justice.

918. First, a remedy that would otherwise be available is made available and seen to be available. Kirby, J in Boland v Yates Property Corp. Pty Ltd,[220] commented that immunity from liability at law which would otherwise apply is a derogation from the normal accountability for wrongdoing which is an ordinary feature of the rule of law and fundamental civil rights.[221]

921. Secondly, assuming that an absence of immunity would have an impact on prosecution lawyers, the duty to disclose information would be reinforced. This can only increase confidence in the correctness of any guilty verdict and reduce the risk of miscarriages of justice. I suggest that Sir William Blackstone's famous statement remains valid;

"it is better than ten guilty persons escape than that one innocent person suffer.[222]"

At the very least, it may be said that it is a greater miscarriage to convict the innocent than it is to acquit the guilty.

927. The underlying policy concern is the due administration of justice. It is necessary to weigh in the balance the competing risks and consequences identified above.

930. In my view that exercise does not lead to the conclusion that immunity is required as a matter of necessity to prevent an accused suing prosecuting counsel and solicitors for compensation for non-disclosure of information relative to the trial of that accused where it is alleged that the non-disclosure constitutes misfeasance in a public office. On the contrary, it leads clearly to the conclusion that the due administration will be enhanced by permitting such action.

933. Thus a consideration of the relevant policy concerns strongly supports the conclusion I have reached above that the core immunity does not apply in this case because the non-disclosure alleged was not "intimately connected" with the conduct of the case in court.

936. Before leaving these issues, I note that I was referred to some authorities from the United States of America and Canada on the issue of immunity from suit. The examination of these and the submissions suggested that it would be unsafe to rely upon these authorities because of differences in our underlying legal contexts. In addition, I am bound, in any event, by the analysis in Giannarelli.

940. Counsel for the plaintiff argues, in the alternative, that if non-disclosure of information by the prosecution was "intimately connected" with the conduct of the trial, the tort of misfeasance in a public office is a tort concerned with abuse of power and that immunity does not and should not extend to such torts. Counsel pointed to the fact that immunity from suit is not available for actions for malicious prosecution or abuse of process. Counsel referred to a number of authorities. There is much force in the plaintiff's argument. We are concerned with alleged abuse of the processes for the conduct of prosecutions. It is unnecessary, however, to venture into this question in view of the conclusion that I have reached that the core immunity, correctly defined, does not cover non-disclosure of information by the prosecution lawyers in a criminal trial.

943. Before formally answering the questions and making the necessary orders, I will hear submissions on those matters.

946. There remains for consideration the plaintiff's amendment application.

950. I have referred above to the plaintiff's application, a summons seeking leave to amend the statement of claim to include claims of negligence and misfeasance in a public office against the fifth defendant arising out of her alleged failure to disclose the findings of the police doctor, Doctor Jappie, made after the trial in 1993 when examining the first defendant after she had made allegations that she had been again raped by Charlie. A number of issues have been canvassed relevant to the question whether leave to amend should be given in respect of both causes of action.

953. The application is made under rule 36.01(1) which provides:

"36.01(1) For the purpose of determining a real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, while avoiding multiplicity of proceedings, the court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceedings".

In the present pleadings reference is made to Dr Jappie's examinations in 1993. Thus the plaintiff was intending to lead evidence in relation to them. What the amendment attempts is to link the fifth defendant to that examination and the handling of the results of it and to seek damages from her in respect of that conduct.

958. In resisting the application, the defendant has relied upon arguments previously put on the issue of negligence. I have previously ruled against an application to amend the pleadings to allow a claim in negligence to be put in respect of the alleged non-disclosure that occurred during the trial. I remain of the view previously expressed that no duty of care should be imposed upon those lawyers prosecuting in that situation. I rely in particular on the reasons in Elguzouli-Daf,[223] which appears to remain good law in England,[224] and Grimwade[225] which emphasise the creation of additional conflict for Crown prosecutors and those instructing them if a duty of care in favour of the accused is imposed upon them in the conduct of the prosecution case.

961. Here the plaintiff's proposed amendment raises a cause of action relating to alleged post trial non-disclosure. It is proposed to allege a failure to exercise reasonable care in discharging the duty to disclose. Expressed in that way it is a more limited duty of care. But it either introduces additional conflict or, if not, adds nothing to the existing duty of disclosure which is a duty to act fairly. In those circumstances no duty of care should be imposed of that description. In my view a conflict situation continues on the basis that, as evidenced by her continued involvement, as an officer employed by the DPP, she remained seized of the matter and under a duty to act to uphold the verdict while at the same time under a duty to act fairly to the accused. Counsel for the DPP conceded that a continuing duty of disclosure operated.

964. So far as the misfeasance aspect of the proposed amendment is concerned the fifth defendant opposed the application, canvassing again the issues relevant to the summary judgment application and the questions ordered to be tried and considered earlier in these reasons. I have dealt with those matters and applying the conclusions I have reached, am persuaded that the fifth defendant was the holder of a public office and the duty of disclosure was one owed to the accused and the community. I am also satisfied that the core immunity principle does not apply in this post trial situation.

967. The fifth defendant has also submitted that leave should not be given because it is alleged that the proposed pleadings are inadequate, especially in dealing with issues of malice in the case of the misfeasance pleading. The proposed pleading is set out in paragraphs 30GA to 30GG of the proposed amended statement of claim filed 31 August 2001. In my view sufficient is alleged there to enable the defendant to understand how the mental element is put.

970. It was also submitted for the fifth defendant that the particulars were insufficient because the facts alleged were consistent with innocence or consistent merely with negligence. Counsel submitted that all that was pleaded was that the fifth defendant had made a professional judgment in light of Dr Jappies's assessment to refer the first defendant to Dr. Welsh for a second opinion and that that was all that was pleaded. It is put that one cannot infer misfeasance in that situation. Counsel's summary, however, does not do justice to the pleadings. Although it could be clearer, it is sufficient to say that facts have been pleaded which would enable the plaintiff to mount an argument that it should be inferred from the conduct of the fifth defendant that there was a failure to disclose the information to the plaintiff or to the DPP and that that omission was with full knowledge of the consequences for the plaintiff, or reckless in the requisite sense. The plaintiff will presumably be relying, inter alia, upon an argument that it is relevant to consider that the fifth defendant, being appraised of the facts and receiving Dr Welsh's response, did nothing further. The plaintiff would appear to be seeking to draw inferences from the facts alleged - which, of course, is the usual way that intent is established.

973. Finally, the fifth defendant argues that the additional causes of action are statute barred. I refer to my analysis of this question in my ruling on the summary judgment application of the fifth and sixth defendants which was based on that defence. Applying the principles there enunciated, on any view, the last occasion on which the cause of action might be said to have accrued was in early July 1995 - applying s.27 Limitation of Actions Act 1958 (Vic) (the most favourable approach from the plaintiff's point of view). It was in early July that the relevant documents were provided which referred to the fifth defendant's post trial involvement. As a result the claim is now statute barred.

976. The plaintiff submits, however, that notwithstanding that the limitation period might otherwise apply, he is nonetheless entitled to have the pleading amended to join this claim to the claim already made. The plaintiff relies upon s.34 of the Limitation of Actions Act 1958 (Vic), and Rule 36.01(6). The latter provides:

"36.01(6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise".

980. It has been held in a number of unreported decisions that depriving the other party of a limitation defence by an amendment does not give rise to relevant prejudice (see Williams Civil Procedure - Victoria para 36.01.230).

983. The fifth defendant argued that the discretion to permit the amendment to include the claim, which was now statute barred, should not be exercised in favour of the plaintiff in circumstances where the only cause of action currently in the pleading against the fifth defendant is one that should be dismissed.

986. The argument assumed that the fifth defendant would be successful in her summary judgment application. For the reasons given in that matter she has been unsuccessful and that claim still stands, although it will be for a more limited loss. In those circumstances, the assumption behind the argument is not made out and the issue, therefore, does not arise for consideration in the exercise of the discretion

989. I am satisfied that the fifth defendant would not be relevantly prejudiced and, in all the circumstances, am persuaded that the discretion should be exercised in favour of the plaintiff.

[1] Particulars of loss and damage alleged in paragraph 9, are stated as follows: "PARTICULARS a. The plaintiff was arrested, remanded in custody, charged with the revenge rape. The plaintiff was incarcerated until 27 July 1995. b. The plaintiff was assaulted by the police as set out in paragraphs 9-16 below. c. The plaintiff suffers the stigma of being a convicted rapist. PARTICULARS OF SPECIAL DAMAGE The plaintiff was born on 10 May 1969. He was unable to work while in jail. Since he left jail he has been unable to obtain work. Further particulars will be provided prior to trial".

[2] Para 30A of Statement of Claim above and para 21 of the Defences

[3] Northern Territory of Australia v Mengel (1995) 185 CLR 307; Sanders v Snell (1998) 196 CLR 329; Three Rivers District Council & Ors v Bank of England [2000] UKHL 33; [2000] 3 All ER 1 and Edwards v Olsen & Ors [2000] SASC 438

[4] Northern Territory of Australia v Mengel (1995) 185 CLR 307 per Brennan J, at 356-7 approved Sanders v Snell (1998) 196 CLR 329 at 344

[5] Northern Territory of Australia v Mengel (1995) 185 CLR 307 per Brennan J. at 359, Mason C.J. et al at 347, Deane J. at 370-1, and Perry J., in Edwards v Olsen [2000] SASC 438 , Sanders v Snell (1998) 196 CLR 329 at 345, Garret v AG [1997] 2NZLR 332; Three Rivers District Council v Bank of England [2000] UKHL 33; [2000] 3 All ER 1 at 8, 9, 36, 44, 48

[6] Northern Territory of Australia v Mengel (1995) 185 CLR 307 per Brennan J. at 359, Three Rivers District Council v Bank of England [2000] UKHL 33; [2000] 3 All ER 1 at 10, 38, 48

[7] Roncarelli v Duplessis [1959] SCR 121 and Sanders v Snell (1997) 143 ALR 426

[8] Three Rivers District Council v Bank of England (No3) [2001] UKHL 16; [2001] 2 All ER 513

[9] Farrington v Thompson [1959] VicRp 49; [1959] VR 286

[10] Northern Territory of Australia v Mengel (1995) 185 CLR 307

[11] (1997) 90 A Crim R 526 at 535

[12] Dunlop v Woollahra Municipal Council [1982] AC 158

[13] [1973] VicRp 32; [1973] VR 321

[14] Re Reference under Section 11 of Ombudsmen Act 1976 for an Advisory Opinion (1979) 2 ALD 86, per Brennan, J (as he then was).

[15] Pemberton v A-G (Tas) [1978] Tas SR 1 at 12 per Neasey,J.; see also Cockburn & Thomas,"Personal Liability of Public Officers in the tort of misfeasance in Public Office" (2001) 9 (I) TLJ 80,86 and Finn "Public Officers: Some Personal Liabilities" (1977) 51 ALJ 313;

[16] [1828] EngR 701; [1828] 5 Bing 91

[19] [1973] VicRp 32; [1973] VR 321. Other examples are; Pemberton v Attorney General [1978] Tas SR 1, where it was held by Neasey, J that the Director General of Education was not acting in a public office when dismissing a teacher and the teacher was not a member of the public to whom he owed a duty; E v K [1995] 2 NZLR 239, where it was held that a social worker employed by a government department as a case worker did not owe a duty to the public and, therefore, was not a public officer for the purpose of the tort.

[23] Tampion v Anderson [1973 ] VR 715; comprising Smith, Pape and Crockett JJ

[27] Cf, A-G (UK) v Smethwick Corporation [1932] 1 Ch 562; A-G (Vic) v City of Geelong [1914] HCA 55; (1914) 18 CLR 553 at 557; A-G v Shire of Frankston and Hastings [1935] VicLawRp 2; [1935] VLR 5

[28] Lord Hobhouse, Three Rivers District Council v Bank of England [2000] UKHL 33; [2000] 3 All ER 1 at 44; and see S. Kneebone, "Misfeasance in a Public Office after Mengel's case: A "Special" Tort no more? [1996] 4 (2) Torts L Rev 111 at 122-6; Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106.

[29] [1973] VicRp 70; [1973] VR 715 at 720

[30] The Full Court went on to consider the facts of the case on the assumption that the Board was liable for the tort of misfeasance in a public office for conscious abuse of statutory powers and found on the facts the Board was not, the complaints being about a failure to confine deliberations, addresses and comments and the report and recommendations to matters within the terms of reference.

[31] See Finn, "Public Officers: Some Personal Liabilities" (1977) 51 ALJ 313 at 314

[32] [1973] VicRp 70; [1973] VR 715

[33] See Richardson v R [1974] HCA 19; (1974) 131 CLR 116 at 119 ; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575-6; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 at 664-665 and R v Lucas [1973] VicRp 68; [1973] VR 693

[34] [1998] 1 VR 630, at 635

[35] (1991) 161 L.S. J.S. 135 at 145

[36] See also R v Charlton [1972] VicRp 90; [1972] VR 758 at 761 ; R v C.P.K. unreported NSW Court of Criminal Appeal, 21 June 1995

[37] [1997] UKHL 33; [1998] AC 367; Court of Appeal [1994] 1 WLR 1599 at 1606

[38] Unreported, 20 December 1993, at 376 - Queens Bench Division, High Court of Justice.

[39] Note: it was also adopted in R v Keane [1994] 1 WLR 746 at 752

[40] [1997] UKHL 33; [1998] AC 367 at 377

[41] [1994] 1 WLR 1599 at 1607

[45] cf R v Lucas [1973] VicRp 68; [1973] VR 693 - "duty" at 697 "obligations attending to prosecuting counsel" at 705 as well as "duties"; see also R v Garofalo [1999] 2 VR 625 - "duty" and "obligation".

[46] Part V - Particular Duties in Criminal Matters

[47] e.g. Evidence (Confidential Communications) Act 1998(Vic) - not in operation at the time in question.) ; section 37A Evidence Act 1958 (Vic); and Issues of Legal Professional Privilege and Public Interest Immunity; also where co-accused and disclosure may assist one but harm another.

[50] [1992] 2 NZLR 533 at 535, 536 and 542

[51] [1997] UKHL 33; [1998] AC 367 at 371 and 374

[53] [1997] UKHL 33; [1998] AC 367 at 374-5

[54] R v Lewis Hamilton [1998] 1 VR 630, R v CPK Unreported NSW CCA, 21 June 1995 and K v R (1991) 161 LSJS 135

[57] Counsel for the DPP referred to Ratten v R [1974] HCA 35; (1974) 131 CLR 510 at 518 ; Gallagher v R [1986] HCA 26; (1985) 160 CLR 392 at 395 - 402 ; Mickleberg v R [1989] HCA 35; (1989) 167 CLR 259 at 273, 275 ; R v Tahche, unreported, Court of Appeal (Vic) 27 September 1995, at 3

[58] [1983] HCA 42; (1983) 152 CLR 657 at 665

[61] (1990) 2 WAR 510

[64] Ibid at 517 formulated in Munster v Lamb and applied in Cabassi v Vila

[69] Love v Robbins (1990) 2 WAR 510 at 519

[71] an actionable duty to conduct a fair hearing.

[72] [1974] HCA 19; (1974) 131 CLR 116

[77] [1957] HCA 46; (1957) 97 CLR 279 at 293

[78] [1936] 3 All ER 36 at 49

[79] Richardson v R [1974] HCA 19; (1974) 131 CLR 116 at 121

[82] See Grimwade v State of Victoria (1997) 90 A Crim R 526 at 560.

[84] (1997) 10 Admin LR 245 at 254

[85] [1994] EWCA Civ 4; [1995] QB 335

[87] [1994] I WLR 1599 at 1606 per Steyn LJ

[88] [2000] UKHL 38; [2000] 3 All ER 673 at 743

[89] c.f., Australian Law Reform Commission, Report No.26, Interim Evidence, Vol.1., 26-32, P.A. Sallman "An Examination of some Criticisms of the Criminal Trial" in The Criminal Trial on Trial, No.53, 28 (see also (1983) 16 ANZ Journal of Criminology 31).

[90] See Sorby v R (1986) 21 A Crim R 64: R v Charlton [1972] VicRp 90; [1972] VR 758; Clarkson v DPP [1990] VicRp 65; [1990] VR 745

[91] R v Puddick [1865] EngR 61; (1865) 4 F& F 497: R v Banks [1916-17] All ER. Rep. 356; R v Hay and Lindsay [1968] Qd R 459; Kenny, Outlines of Criminal Law 19th Edition 1966, p611; R v Bazley (1986) 21 A Crim R 19 at 29; Vella v The Queen, Court of Criminal Appeal Western Australia unreported 29 March 1990; Huynh v The Queen, Court of Criminal Appeal Western Australia unreported 8 June 1999; Elguzouli - Daf v Commissioner of Police [1994] EWCA Civ 4; [1995] QB. 335 per Steyn L.J, at 348 and Morritt, L.J, at 352

[92] [1973] VicRp 68; [1973] VR 693 at 705

[93] (1990) 2 WAR 510 at 524

[94] [1983] HCA 42; (1983) 152 CLR 657 at 663

[95] [1973] VicRp 70; [1973] VR 715

[96] eg. Grimwade v State of Victoria (1997) 90 A Crim R 526 at 545 and following; R v Lucas [1973] VicRp 68; [1973] VR 693 at 698, 705; R v Garofalo, (1999) 2 VR 625 at 634-5.

[97] P.M.S. Hacker, "Sanction Theories of Duty" in Oxford Essays in Jurisprudence, Second Series, edited A.W.E. Simpson (1973) discussing Bentham, Mill and Hart.

[98] There may in some cases be the possibility of judicial review; Clarkson v DPP [1990] VicRp 65; [1990] VR 745; Stefanovski v County Court of Victoria and Murphy, unreported 18 October 2000, VSC 417, per Gillard, J.

[99] Roy v Prior [1971] AC 470; Gibbs v Rea [1998] UKPC 3; [1998] AC 786; Bennett v Commissioner of Police and Others (1997) 10 Admin LR 245 at 254; Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177; Darker v Chief Constable of the West Midlands Police [2000] UKHL 44; [2000] 4 All ER 193.

[100] Marrinan v Vibart [1963] 1 QB 234.

[101] Evans v London Hospital Medical College [1981] 1 All ER 715

[102] Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177, per Lord Hoffman at 214 - 215

[103] Cabassi v Vila (1940) 64 CLR at 130; see also Love v Robbins (1990) 2 WAR 510.

[104] (1883) 11 QBD 588 at 604 and 607.

[105] [1973] VicRp 32; [1973] VR 321 at 334 - 335

[106] (1997) 90 A Crim R 526

[107] (1883) 11 QBD 588 at 604.

[108] Grimwade v State of Victoria (1997) 90 A Crim R 526 at 567

[109] [1998] UKHL 39; [1999] 2 AC 177

[110] (1997) 10 Admin LR 245

[111] Ibid 254; Lord Hutton cited with approval the above passage of Sir Richard Scott's judgment that there is no general principle that there should be an absolute immunity in respect of actions of police in carrying out their duties - Darker v. Chief Constable of the West Midlands Police [2000] UKHL 44; [2000] 4 All ER 193 at 218

[113] Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177 at 215

[115] Court of Appeal, The Times, 29 April 1988. See also Gizzonio v Chief Constable of Derbyshire [1998] EWCA 1442 26 March 1998, unreported

[116] . (1997) 10 Admin LR 245

[117] [2000] UKHL 44; [2000] 4 All ER 193.

[119] [1998] UKHL 39; [1999] 2 AC 177 at 208

[120] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 per Wilson, J at 575, per Deane, J at 588; Boland v Yates [1999] HCA 64; (1999) 74 ALJR 209 at 236; see also Darker v Chief Constable of the West Midlands Police [2000] UKHL 44; [2000] 4 All ER 193 at 216, and Arthur JS Hall v Simons [2000] UKHL 38; [2000] 3 All ER 673 at 683, 710, 724, 726, 735.

[121] [1997] HCA 28; [1997] 71 ALJR 903 at 907, 912.

[122] [1988] HCA 52; (1988) 165 CLR 543

[128] Ibid; Cabassi v Villa [1940] HCA 41; (1940) 64 CLR 130 at 141 and Munster v Lamb (1883) 11 QBD 588

[130] [1940] HCA 41; (1940) 64 CLR 130 at 144.

[131] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 558 per Mason CJ..

[132] Ibid - Quoting Fry, C. J. in Munster v Lamb (1883) 11 QBD 588 at 607.

[138] Ibid; Saif Ali v Sydney Mitchell & Co. [1980] AC 198 at 215, 224, 227, being the views expressed by Lord Wilberforce, Lord Diplock and Lord Salmon.

[141] [1974] 1 NZLR 180 at 187.

[142] [1980] AC 198 at 215 , 224, 232 , 236.

[143] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 560

[148] Ibit at 574, quoting Rondel v Worsley [1969] 1 AC 191 at 250.

[153] Ibid at 579. And with the discussion in Rondel v Worsley [1969] 1 AC 191 and Saif Ali v Sydney Mitchell & Co. [1980] AC 198.

[160] [1980] AC 198 at 219 - 221.

[161] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 594.

[162] [1980] AC 198 at 221.

[163] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 594.

[168] [1974] NZLR 180 at 187 per McCarthy P.

[169] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 per Mason, C.J. at 560, (with whom Brennan, J agreed); and Wilson, J. at 571

[170] Yates Property Corporation v Boland, Federal Court of Australia, Full Court, 5 August 1998, unreported at 39 and Macrae v Stevens, Unreported, Supreme Court of New South Wales, Court of Appeal, 18 October 1996, BC 96 04869 at 21.

[171] (1989) 16 NSWLR 713

[172] Unreported Fed C of A, Full Court, 5 August 1998

[174] Unreported CA (NSW) Priestley, Meagher and Beazley JJA, 18 October,1996

[175] Yates v Boland, Unreported Fed C of A, Full Court, 5 August, 1988 at 40

[177] Note:Yates v Boland was taken on appeal to the High Court (Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209). The majority of the High Court held that the Full Court had been in error in finding negligence and did not consider the question of immunity. Kirby J did and argued strongly for a review. Gummow and Callinan, J J. indicated that they saw no need to change.

[178] Unreported CA (NSW) Priestley, Meagher and Beazley JJA , 18 October, 1996

[181] (1990) 21 NSWLR 335

[182] (1990) 2 WAR 510

[183] Unreported, CA (NSW) Priestley, Meagher and Beazley JJA, 18 October, 1996 at 22

[185] Rees v Sinclair [1974] NZLR 180; Saif Ali v Sydney Mitchell & Co. [1980] AC 198, per Lord Wilbeforce at 215; Macrae v Stevens Unreported CA (NSW) , 18 October, 1996 at 20-21.

[186] Reference was made to Elguzouli - Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335

[187] [2000] UKHL 38; [2000] 3 All ER 673.

[188] [1994] EWCA Civ 4; [1995] QB 335 at 349

[189] Ibid at 347; as did Morritt, LJ at 302: Rose, LJ agreed with Steyn, LJ

[190] Note: It appears that there was concern in England in the 1960's, that prosecutors were letting concern about acting as ministers of justice emasculate their role - see Lord Devlin, Trial by Jury, 1966, 122-3, R v Rugari [2001] NSW CCA 64, para 47

[191] (1997) 90 A Crim R 526 at 545

[193] Ibid at 545; see also 558-60; at 559, in confining the duty of the prosecutor to a duty to be fair, his Honour commented "To be more than fair to an accused is to be less than dutiful to the Crown".

[194] (See also O'Doherty v Birrell [2001] VSCA 44; [2001] 3 VR 147 at 165 and cases there cited).

[195] [1981] UKHL 13; [1982] AC 529

[199] [1984] 1 NZLR 280

[200] (1994) 181 CLR 251

[201] [1984] 1 NZLR 280

[202] Rogers v. The Queen (1994) 181 CLR 251 at 269

[204] Ibid at 290 - earlier explanation 289

[205] [2000] UKHL 38; [2000] 3 All ER 673

[207] Ibid; See Lord Hope at 722; see also Lord Hobhouse at 740 and 748, where he points out that Rondel v Worsley was a case that would not be stayed because of any abuse of process argument.

[211] cf,. Lord Cooke of Thornton on police, in Darker v Chief Constable of the West Midlands Police [2000] UKHL 44; [2000] 4 All ER 193 at 201 and conflicting views in Arthur J.S Hall v Simons [2000] UKHL 38; [2000] 3 All ER 673

[213] cf. The comment of Lord Millett in Arthur, J.S. Hall v Simons [[2000] UKHL 38; 2000] 3 All ER 673 at 749, suggesting that immunity in relation to criminal cases as against civil cases would not commend itself to the public:

"It would mean that a party would have a remedy if the incompetence of his counsel deprived him of compensation for (say) breach of contract or unfair dismissal, but not if it led to his imprisonment for a crime he did not commit and the consequent and uncompensated loss of his job. I think that the public would best regard such a result as incomprehensible and at worst greet it with derision. The more thoughtful members of the public might well consider that we had got it the wrong way round."

[214] [2000] UKHL 38; [2000] 3 All ER 673

[219] [1999] HCA 64; (1999) 74 ALJR 209 at 238, para 137

[220] Ibid at 236, 238, 239 (paras 1-9, 137 and 140)

[221] See Lord Hope in Arthur J.S. Hall v Simons [2000] UKHL 38; [2000] 3 All ER 673 at 710-712 where he discusses those propositions also in the context of human rights law.

[222] Commentaries on the Law of England (1869) IV 445. See also L. Radzinowicz, "Illusions about Crime and Justice", in Lasky and Thwaite (ed) Encounter, London - 1981, 31, 38; J.P. Widgery, "The Balance of the Criminal Law Trial" [1972] NZLR 688; I. Temby QC Address to the Victorian Council of Civil Liberties, Civil Liberty, vol. 1, No. 4, 1985, 7; "not a piece of sentimentality" - Report of Royal Commission on the Activities of the Federated Ship Painters and Dockers Union, Vol 1, 20ff, 24ff; not a "bumper sticker", Morgan R.E, "Disabling America"Basic Books, Inc 1984, 106.

[223] [1994] EWCA Civ 4; [1995] QB 335

[224] Arthur .J.S Hall v Simons [2000] UKHL 38; [2000] 3 All ER 673, per Lord Hobhouse at 745 and Lord Hope at 723;

[225] (1997) 90 A Crim R 526