Tahche v Abboud [2002] VSC 42

Supreme Court of Victoria|2002-03-01|Before: Smith J

Tort - Misfeasance in public office - Prosecution lawyers - Duty of disclosure to accused - "public office" - Immunity from suit.

By summons dated 17 August 2001, the fifth and sixth defendants, Angela Cannon and Mark Rochford, seek a variety of orders directed to the termination of the plaintiff's proceedings to the extent that they relate to them. Ms. Cannon was a preparations officer employed by the DPP to instruct Mr. Rochford, a member of the independent Bar, who was retained to prosecute the plaintiff in a rape trial. He has sued them, claiming damages for misfeasance in a public office.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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).

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.

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

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.

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.

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.

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].

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].

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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]

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]

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.

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."

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.

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".

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]

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".

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.

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".

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".

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.

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.

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.

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].

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

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.

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.

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

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

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.

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]

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.

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".

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]

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)".

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".

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]

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]

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]

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].

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]

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.

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

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.

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.

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?

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.

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."

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."

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.

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.

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]

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".

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.

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]

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".

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.

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.

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.

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".

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".

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".

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".

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].

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.

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.

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.

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.

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?

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".

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".

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