Malicious prosecution, Beckett v New South Wales [2013] HCA 17
Beckett v New South Wales [2013] HCA 17 (8 May 2013)
Last Updated: 14 May 2013
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ
ROSEANNE BECKETT APPLICANT
AND
THE STATE OF NEW SOUTH WALES RESPONDENT
ORDER
- Special
leave to appeal granted.
- The
appeal be treated as instituted and heard instanter and allowed with costs.
- Set
aside that part of order (b) of the Court of Appeal of the Supreme Court of New
South Wales made on 2 May 2012 dismissing the
appeal with costs and, in
lieu thereof, order that:
(a) appeal allowed with costs; and
(b) the answer of Davies J to question A of the respondent's notice of
motion filed on 16 May 2011 be set aside and, in lieu thereof,
question A
be answered "No".
- The
respondent pay the appellant's costs of the separate determination before Davies
J.
On appeal from the Supreme Court of New South Wales
Representation
G O'L Reynolds SC with S M Nixon and G R Rubagotti for the applicant
(instructed by Turner Freeman Lawyers)
B W Walker SC with W G Roser SC and P J Saidi for the respondent (instructed
by Crown Solicitor (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision prior to publication in the Commonwealth Law
Reports.
CATCHWORDS
Beckett v New South Wales
Torts – Malicious prosecution – Elements – Whether proof of
innocence required where proceedings terminated by entry
of nolle prosequi
– Whether entry of nolle prosequi terminates proceedings in favour of
accused – Whether
Davis v Gell [1924] HCA 56;
(1924) 35 CLR 275 should be followed
– Whether direction that no further proceedings be taken against person
under s 7(2)(b)
of
Director of Public Prosecutions Act 1986 (NSW)
equivalent to termination by entry of nolle prosequi.
Words and phrases – "favourable termination of the prosecution",
"malicious prosecution", "nolle prosequi".
Director of Public Prosecutions Act 1986 (NSW),
s 7(2).
- FRENCH
CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ. This appeal is concerned with proof of
the tort of malicious prosecution in a case
in which the criminal proceeding
giving rise to the claim is terminated by a direction from the Director of
Public Prosecutions ("the
Director") that no further proceedings be taken
against the
person[1].
- With
one exception, the plaintiff's guilt or innocence of the criminal charge is not
an issue in the action for malicious prosecution.
The exception, allowed in
Commonwealth Life Assurance Society Ltd v
Smith[2] on
the authority of Davis v
Gell[3],
requires the plaintiff to prove his or her innocence at the trial of the civil
action where the prosecution was terminated by the
entry of a nolle prosequi by
the Attorney-General ("the Davis exception").
- The
Attorney-General, or a person acting under the authority of the
Attorney-General, may enter a nolle
prosequi[4] at
any time after the indictment is signed and before the return of the verdict.
The entry of the nolle prosequi brings the proceedings
to a halt without
determination of guilt. It does not bar the subsequent prosecution of the
accused on the same
charge[5].
Section 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW)
("the DPP Act") confers the same functions on the Director as the
Attorney-General with respect to directing that there be no further proceedings
against a person who has been committed for trial. The two questions raised in
the appeal are whether the Davis exception is good law and, if it is,
whether the termination of a prosecution in the exercise of the Director's
statutory power is
within it.
The tort of malicious prosecution
- The
wrong for which the tort provides redress is the malicious instigation or
maintenance of the prosecution of the plaintiff without
reasonable and probable
cause. The elements of the tort are set out in A v New South Wales. In
summary, the plaintiff must prove four things: (1) the prosecution was
initiated by the defendant; (2) the prosecution terminated
favourably to the
plaintiff; (3) the defendant acted with malice in bringing or maintaining
the prosecution; and (4) the prosecution
was brought or maintained without
reasonable and probable
cause[6]. A v
New South Wales considered the third and fourth of those elements. One
aspect of that consideration which assumes importance in this appeal is the
discussion of the temporal dimension of the tort: proof of the absence of
reasonable and probable cause directs attention to the
state of affairs at the
time the defendant is alleged to have instigated or maintained the
prosecution[7].
Evidence bearing on the existence of reasonable and probable cause is confined
to the material available to the defendant at the
time the prosecution was
commenced or
maintained[8].
- The
second element of the tort is a requirement of policy. Differing accounts of
the rationale for the requirement are found in
the early
cases[9]. It is
said that a person should not be permitted to allege that a pending proceeding
is
"unjust"[10],
and that the possibility of a conflict in judicial decisions should not be
allowed[11].
The rationales for the rule evince the concern of the law
with the consistency of judicial determinations, a concern that is distinct
from
proof of actual innocence or guilt: a plaintiff who is wrongfully convicted of
an offence cannot maintain an action for malicious
prosecution notwithstanding
that he or she may possess irrefutable proof of
innocence[12].
- The
requirement that the prosecution has terminated avoids the possibility of
conflict in the decisions of the court trying the criminal
charge and the court
trying the civil action. Any termination that does not result in conviction is
favourable to the plaintiff
for the purposes of the civil
action[13].
Prosecutions may terminate in a number of ways without verdict: the magistrate
may not commit for trial; the Director may not
find a bill of indictment; the
Director may direct that no further proceedings be taken after a bill has been
found; or the Attorney-General
may enter a nolle prosequi. The plaintiff has no
control over the termination of the proceedings in any of these ways and in
those
circumstances it would be unjust to deprive him or her of the ability to
recover for the
tort[14]. As
Professor Salmond explained
it[15]:
"What the plaintiff requires for his action is not a judicial determination of
his innocence, but merely the absence of any judicial
determination of his
guilt."
- As
will appear, the Davis exception was allowed in Smith because of
uncertainty concerning whether the entry of a nolle prosequi terminates the
prosecution, and not because the innocence
of the plaintiff was an issue in the
civil action. At this juncture it is convenient to turn to the decisions in
Davis and Smith.
Davis
- The
prosecution in Davis was terminated by the entry of a nolle prosequi
after Mr Gell entered a plea of not guilty to the presentment in the
Supreme Court
of
Victoria[16].
At the trial of Mr Gell's subsequent action for damages for malicious
prosecution, the jury were directed to assume his innocence
because the
prosecution had terminated in his favour. The jury returned a verdict for
Mr Gell. Mr Davis applied for a new trial
contending that the
direction to assume Mr Gell's innocence was
wrong[17]. He
appealed from the dismissal of his application to the Full Court of the Supreme
Court of
Victoria[18].
The Full Court dismissed the appeal, holding that any error had not occasioned a
miscarriage of justice. From that decision Mr
Davis appealed to this
Court.
- Isaacs ACJ
said that an element of the tort is that "[t]he prosecution must have been
groundless"[19].
In this respect, his Honour relied upon the statements of Cleasby B in
Johnson v Emerson that the prosecution must be "wholly unfounded" and
"really without
foundation"[20].
Isaacs ACJ explained that groundlessness in this context "means that the
plaintiff in the civil action is innocent, because, the
prosecution being
groundless, there was, when all the circumstances are known, no real
cause for
it"[21]. The
entry of a nolle prosequi established the favourable termination of the
prosecution, but it remained for the plaintiff to prove
his innocence to succeed
in his
action[22]. In
the case of a prosecution which terminated in the plaintiff's acquittal, the
policy against permitting conflicting
decisions[23]
gave rise to an irrebuttable presumption of innocence at the trial of the civil
action[24].
However, in the case of a prosecution which terminated favourably to the
plaintiff without verdict, it remained for the plaintiff
to prove his innocence
in accordance with the ordinary rules of
evidence[25].
- Gavan Duffy J
agreed that proof of innocence was an element of the tort. The trial judge had
been wrong to direct that the plaintiff's
innocence was to be assumed from the
entry of the nolle prosequi. His Honour found it unnecessary to consider the
position in the
case of a prosecution that terminated in the plaintiff's
acquittal[26].
- Starke J
held that innocence was an issue in the civil action on the authority of Cox
v English, Scottish, and Australian Bank
Ltd[27] and
Crowley v Glissan
(No 2)[28].
These approved a statement made by Bowen LJ in Abrath v North Eastern
Railway Co that "in an action for malicious prosecution the plaintiff has to
prove, first, that he was innocent and that his innocence was pronounced
by the
tribunal before which the accusation was
made"[29].
Starke J considered that public policy was against re-litigation of the issue of
innocence in the civil action in a case in which
the prosecution terminated in
acquittal. Proceedings terminated by the entry of a nolle prosequi, the
ignoramus of a grand jury, the refusal of a justice to commit for trial,
some want of jurisdiction or technical defect in the indictment were
all forms
of termination favourable to the plaintiff, but none sufficed to prove
innocence[30].
- At
around the time of the decision in Davis, a court in India held that the
plaintiff was required to prove his innocence in an action for malicious
prosecution. On appeal
to the Privy Council, Lord Dunedin characterised
this requirement as one that was "quite erroneous". His Lordship observed
that
the action required proof "[t]hat the proceedings complained of terminated
in favour of the plaintiff if from their nature they were
capable of so
terminating"[31].
Smith
- Mr Smith
was committed for trial on a charge of defrauding the Commonwealth Life
Assurance Society Ltd. The prosecution was terminated
by the decision of the
Attorney-General not to file an
indictment[32].
In a subsequent action for damages for malicious prosecution, Mr Smith
sought to adduce evidence of his innocence. The defendant
objected on grounds
of relevance. The trial judge, on the authority of Davis, admitted the
evidence.
- On
appeal in this Court, the question squarely raised was whether the plaintiff's
guilt or innocence is in issue in the civil
action[33].
The majority held it was not. In so holding, Rich, Dixon, Evatt and
McTiernan JJ concluded that Bowen LJ's dictum in his ex tempore
reasons in
Abrath[34]
was intended to state no more than that the plaintiff must prove a favourable
termination of the prosecution in order to maintain
the
action[35].
Their Honours observed that none of the pleading precedents and none of the
text-writers suggested that proof of innocence was
required in the civil
action[36].
They
concluded[37]:
"Except
in the case of a
nolle prosequi covered by the decision in
Davis v
Gell, we are of opinion that the guilt or innocence of the plaintiff is not
an issue going to the cause of action in malicious prosecution."
- Turning
to the decision in Davis, their Honours observed that in
Balbhaddar Singh v Badri Sah Lord Dunedin had adverted to the
position of the nolle prosequi as "possibly
unsettled"[38].
They quoted the statement in Goddard v Smith that the entry of a nolle
prosequi "only puts the defendant without
day"[39], and
said that there was "some uncertainty as to the sufficiency of a nolle
prosequi"[40].
The uncertainty was with respect to whether the entry of a nolle prosequi stayed
proceedings permitting "fresh process [to] be awarded
in the same
indictment"[41].
It was uncertainty as to the termination of the prosecution.
- Starke J
adhered to the view he had expressed in Davis, that proof of the falsity
of the charge is an essential element of the cause of
action[42].
Balbhaddar affirmed that termination of a prosecution by the refusal to
commit for trial (as had occurred in that case) conclusively established
the
falsity of the
charge[43].
Turning to other forms of termination, his Honour concluded that it would not be
consistent with principle or public policy that
the decisions of magistrates,
grand juries or the Attorney-General should be tried again on the merits and
"blowed off by a side
wind"[44]. It
followed that Mr Smith's innocence was conclusively presumed from proof that the
Attorney-General had decided not to find a
bill of indictment against him. The
evidence adduced to establish Mr Smith's innocence at the trial of the civil
action was
irrelevant[45].
- Smith
held that the statements in Davis, that innocence was an issue in the
civil action requiring proof in cases in which the prosecution had not been
terminated by acquittal,
were not to be
followed[46].
Davis had been decided on the effect of a termination by nolle prosequi,
and on principle and on the authority of Balbhaddar it was not to be
extended
further[47].
Procedural
history
- At
this point there should be some reference to the history of the present
proceedings.
- The
appellant was arrested by members of the New South Wales Police Force and
charged with a number of offences against her husband.
She was committed to
stand trial in the Supreme Court of New South Wales. A bill of indictment
charging the appellant with nine
counts was found and she was arraigned upon it.
The eighth count was preferred ex officio. At the conclusion of the appellant's
trial on 11 September 1991 the jury returned verdicts of guilty on counts
1, 2, 3, 4, 6, 7 and 9, and on an alternative charge to
the offence charged in
count 5. A verdict of not guilty was returned respecting the offence
charged in count 8.
- In
October 1991, the appellant was sentenced to a term of imprisonment of twelve
years and three months with a non-parole period
of ten years and three months.
She appealed unsuccessfully against her convictions and sentence to the New
South Wales Court of
Criminal
Appeal[48].
- In
2001, the appellant petitioned the Governor seeking a review of her
convictions[49].
The Attorney-General referred the application to the Court of Criminal
Appeal[50].
The Court of Criminal Appeal remitted the determination of a number of factual
questions to Acting
Judge Davidson[51].
Following the delivery of Davidson ADCJ's findings, on 17 August 2005
the Court of Criminal Appeal allowed the appeal in relation
to counts 1, 2, 5,
6, 7 and 9 and quashed each
conviction[52].
The Court entered a verdict of acquittal on count 9. A new trial was ordered on
counts 1, 2, 5, 6 and 7. The appellant's appeal
against her convictions for the
offences charged in counts 3 and 4 was dismissed.
- On
22 September 2005, the Director directed that there be no further
proceedings against the appellant on the outstanding charges
that were the
subject of the Court of Criminal Appeal's order for a new trial. On
26 September 2005, a document communicating the
Director's determination
was forwarded to the Registry of the Court of Criminal
Appeal.
The civil proceedings – the determination of two
separate questions
- On
15 August 2008, the appellant instituted proceedings against the respondent
in the Common Law Division of the Supreme Court claiming
damages for malicious
prosecution on the basis that the respondent was vicariously liable for the
conduct of the police officers
who instigated the prosecution.
- The
respondent filed a notice of motion on 16 May 2011 seeking a separate
determination in relation to two questions:
"A. With respect to
each of the counts 1, 2, 5, 6 and 7 for which the plaintiff was tried:
- Accepting
that the proceedings terminated in favour of the plaintiff, to the extent that
the plaintiff's claim for malicious prosecution
is based upon each of these
counts, does the plaintiff need to prove her innocence in relation to each count
to succeed?
- With
respect to count 9 for which the plaintiff was tried:
- To
the extent that plaintiff's the claim [sic] for malicious prosecution is based
upon this count does the plaintiff need to prove
her innocence of the
charge?"
- The
primary judge (Davies J) agreed to the separate determination of the two
questions. His Honour said that the order quashing
the appellant's
convictions and directing a new trial on the specified counts meant that the
issues "raised by the indictment upon
which those counts were tried will remain
justiciable"[53].
He held that the indictment on which the appellant had been tried was
extant[54].
His Honour concluded that the notification to the Registry of the Court of
Criminal Appeal of the Director's decision to take no
further proceedings
against the appellant was the equivalent of the entry of a nolle
prosequi[55].
He held that he was bound to apply the Davis
exception[56].
He answered the questions as
follows[57]:
"A. Yes.
B. No."
- The
appellant appealed to the Court of Appeal of the Supreme Court of New South
Wales (Beazley and McColl JJA and Tobias AJA) against
the answer to
question A and the respondent cross-appealed against the answer to question B.
The Court of Appeal agreed with the
primary judge that the direction under
s 7(2)(b) of the DPP Act constituted the entry of a nolle
prosequi[58].
It followed that the primary judge had been right to conclude that the
Davis exception
applied[59].
The appeal and the cross-appeal were dismissed.
- The
appellant applied for special leave to appeal. On 5 October 2012, Gummow,
Hayne and Heydon JJ referred the application into
an enlarged Full Court
for hearing as on appeal. For the reasons to be given, special leave should be
granted and the appeal allowed.
It is convenient in these reasons to refer to
the application as an appeal and to the applicant as the appellant.
The grounds of challenge
- The
appellant submits that there is no principled basis for distinguishing
proceedings terminated by the entry of a nolle prosequi
from those terminated in
any of the other ways favourable to the plaintiff. She seeks leave to re-open
Davis. Alternatively, she contends that the Davis exception was
wrongly applied in the trial of her action because the prosecution of the
charges against her was terminated under s 7(2)(b) of the DPP Act and not by the
entry of a nolle prosequi by the Attorney-General.
- The
appellant's submissions in support of her alternative ground departed from the
submissions on which she relied below. In this
Court she did not maintain that
the indictment was spent at the time the s 7(2)(b) determination was
communicated to the Registry of the Court of Criminal Appeal. Her case is that
the Davis exception is confined to "the special case" of proceedings
terminated by nolle
prosequi[60].
The termination of proceedings by the Director under statutory power is said to
be of a different character: the source of the
power is different and the
statutory power is wider.
- The
functions of the Attorney-General with respect to the prosecution of criminal
offences derive from Imperial
statutes[61].
However, it may be accepted that the purpose of the provision of the
Australian Courts Act 1828 (Imp), which conferred power on the
Attorney-General to prosecute offences on ex officio
indictment[62],
was to arm the Attorney-General with a power in all respects similar to that
enjoyed by the Attorney-General in
England[63].
That power included the entry of a nolle
prosequi[64].
The importance of the functions that are incidents of the office of the
Attorney-General is recognised in s 38 of the Constitution Act 1902
(NSW).
- The
Director's functions with which the appeal is concerned are set out in the DPP
Act as follows:
"
7 Principal functions
(1) The principal functions and responsibilities of the Director are:
(a) to institute and conduct, on behalf of the
Crown, prosecutions (whether on indictment or summarily) for indictable offences
in
the Supreme Court and the District Court,
...
(2) The Director has the same functions as the Attorney General in relation
to:
(a) finding a bill of indictment, or determining
that no bill of indictment be found, in respect of an indictable offence, in
circumstances
where the person concerned has been committed for trial,
(b) directing that no further proceedings be taken against a person who has
been committed for trial or sentence, and
(c) finding a bill of indictment in respect of an indictable offence, in
circumstances where the person concerned has not been committed
for trial."
- The
Director may not delegate the exercise of the function conferred on him under s
7(2)(b) save to a Deputy
Director[65].
The Director may not, without the consent of the Attorney-General, exercise a
function in a manner that is inconsistent with the
manner in which the
Attorney-General has already exercised a function in the same
matter[66].
The Attorney-General's power to enter a nolle prosequi is unaffected by the DPP
Act[67].
- The
appellant relies on the decision of the Court of Criminal Appeal of New South
Wales in GKA for the proposition that the Director's power to exercise
the function under s 7(2)(b) is wider than the function of entering a nolle
prosequi[68].
The holding in GKA was that once the Director's direction
under s 7(2)(b) was communicated to the court, the court was deprived
of power to proceed further "upon the current
indictment"[69].
The passage on which the appellant relies is set out
below[70]:
"The
power to direct a nolle prosequi is the same as one power referred to in
ss 7(a) and
27(a) of the
DPP Act. A determination of a 'no bill of
indictment' would not prevent the bringing of a further indictment. The
substance of the power
contemplated by
ss 7(2)(b) and
27(b) is wider than a
nolle prosequi because it constitutes a direction that no further proceedings be
taken against a person who has
been committed for trial or sentence.
Nonetheless, the power conferred by
s 7(2)(b) includes a power to require
entry of a nolle prosequi. It is not necessary in this proceeding to further
define the scope of the
power conferred by
s 7(2)(b)."
- It
is not clear in what respect the Court in GKA considered the power under
s 7(2)(b) to be wider than the power to enter a nolle prosequi. The
functions in s 7(2)(a) and (b) respecting the termination of proceedings in
the case of a person who has been committed for trial are those of determining
that no bill of indictment be found (par (a)) and directing that no further
proceedings be taken against the person (par (b)). Each
terminates the
prosecution without barring the subsequent prosecution of the person for the
same offence. The power to enter a nolle
prosequi is not engaged until a bill
is found and the indictment is
signed[71].
While the power under par (b) is not confined to a direction after a bill has
been found, when the two paragraphs are read together
it is apparent that the
power to terminate proceedings by declining to find a bill of indictment is
found in par (a). The appellant
submits that the reference to the width of the
statutory power in GKA recognises that a direction under s 7(2)(b)
brings proceedings on an indictment to an end, whereas the entry of a nolle
prosequi merely stays the proceedings on the indictment
sine
die[72].
The appellant relies on the statements in Smith that the nolle prosequi
"does no more than bring the trial to an end" and that "fresh process may be
awarded in the same indictment
and the prisoner again put on his
trial"[73].
Nolle prosequi – a stay of proceedings sine
die?
- It
will be recalled that, in Smith, it was uncertainty concerning the
sufficiency of a nolle prosequi to terminate the prosecution that was held to
justify the Davis exception. In their joint reasons, Rich, Dixon, Evatt
and McTiernan JJ quoted Professor Winfield's A Text-Book of the Law
of
Tort[74]:
"The
effect of a
nolle prosequi (staying by the Attorney-General of
proceedings on an indictment) is open to question. An old case indicates that
it is not a sufficient
ending of the prosecution because it still leaves the
accused liable to be indicted afresh on the same charge. But this seems
inconsistent
with the broad interpretation put upon 'favourable termination of
the prosecution' which signifies, not that the accused has been
acquitted, but
that he has not been convicted."
- Their Honours
also noted Professor Winfield's reference to American authorities, which
were to the same effect as the decision of
the New South Wales Supreme Court in
Gilchrist v
Gardner[75].
In Gilchrist, Darley CJ said the entry of a nolle prosequi "puts an
end to that prosecution, though [the Attorney-General] may afterwards cause
a
fresh prosecution to be
commenced"[76].
Windeyer J in the same case said that the entry of a nolle prosequi "put an
end altogether to the prosecution", although it may
be commenced anew on a fresh
indictment[77].
- It
was not necessary in Smith to resolve the controversy concerning the
effect of the entry of a nolle prosequi. It was sufficient to note that
uncertainty in
this respect had led to proceedings terminated by nolle prosequi
constituting a "special case". This category of special case was
"covered" by
the decision in
Davis[78].
- In
Question of Law Reserved on Acquittal (No 3 of
1995)[79],
Debelle J considered the power to enter a nolle prosequi. In question in
that case was the power of the court to refuse to accept
the entry of a nolle
prosequi. His Honour observed that in England the form of endorsement of a
nolle prosequi is of a stay postponing
the proceedings sine
die[80].
He said that it "seems that it is possible for the Crown later to proceed on the
original indictment or information", although
his Honour noted that the usual
practice is to issue a fresh indictment or
information[81].
These statements were based on Professor Edwards' account of the incidents
of a nolle prosequi in The Attorney General, Politics and the Public
Interest[82]:
"[T]he
effect of a
nolle prosequi is neither a bar to a fresh indictment nor a
discharge of the original offence. What it does is to postpone
sine die
the prosecution. Should the Attorney General decide at a later date to reopen
the original charges he can, theoretically speaking,
reactivate the earlier
indictment that was placed in suspension when the
nolle prosequi was
filed in the court's records. Alternatively, fresh proceedings leading to a new
indictment can be commenced to which the accused
will be precluded from raising
a plea of
autrefois acquit on the basis of the
nolle
prosequi."
- Three
authorities are cited for these propositions: Goddard v
Smith[83],
R v
Ridpath[84]
and R v
Allen[85].
Each is authority for the proposition first stated. There is, however, tension
between Goddard and Allen with respect to the proposition that the
indictment may be reactivated. Early text-writers differed on the question.
Chitty's Criminal Law stated that the effect of a nolle prosequi was to
permit the defendant to be re-indicted and "even upon the same indictment fresh
process may be
awarded"[86].
The authority given for the proposition was Goddard. Archbold's
Practice of the Crown Office stated that the entry of a nolle prosequi
"has the effect of putting an end to the prosecution
altogether"[87].
- Goddard
was decided in 1704 and the several reports of the decision are not easy to
reconcile[88].
It was an action on the case for conspiracy maliciously to cause the plaintiff
to be indicted for barratry. The plaintiff's declaration
pleaded that the
indictment had been "according to law in a due and lawful manner thereof
discharged"[89].
At the trial the plaintiff produced a nolle prosequi by the Attorney-General.
The question reserved for the consideration of the
Judges of the King's Bench
was whether proof of the nolle prosequi was sufficient to maintain the
declaration. In the course of
argument Holt CJ
said[90]:
"that
the entering a
nolle prosequi was only putting the defendant
sine
die, and so far from discharging him from the offence, that it did not
discharge any further prosecution upon that very indictment, but
that,
notwithstanding, new process might be made out upon it; and sure it is hard to
allow a man who gets off by a
nolle prosequi to maintain an action for a
malicious prosecution."
- Goddard
held that production of the nolle prosequi did not prove the material part of
the declaration. It is less clear that it is authority
for the proposition that
the entry of a nolle prosequi stays proceedings, permitting the prosecutor to
proceed upon the same indictment
at a later date. A later report of the
decision records that "the nonpross is not a discharge of the crime, but
only of the
indictment"[91].
Mr Harcourt, the Master of the Crown Office, appears to have informed the Court
of the practice respecting the plea of nolle prosequi.
The report
concludes[92]:
"[A]nd
they went upon Mr Harcourt's report, that they used to indict them again,
and not to proceed upon the same indictment."
- In
Allen, Crompton J observed that "the nolle prosequi being on the record,
there is an end of this prosecution; but the question remains
whether that is
final or
not"[93].
His Lordship considered that Archbold was correct and that the nolle
prosequi "has the effect of putting an end to the prosecution
altogether"[94].
He thought that Goddard only decided that the entry of a nolle prosequi
is not a decision on the merits, observing of the report of the decision in
volume
six of the Modern
Reports[95]:
"[T]he Court, in the course of the argument, said that the Attorney
General might issue new process upon the indictment; but, as I
have said, I
rather think the nolle prosequi puts an end to the prosecution."
- It
is far from clear when the older authorities speak of the entry of a nolle
prosequi as "putting the defendant sine die" that more is being said than
that it does not bar a subsequent
prosecution[96].
It is rare for proceedings to be revived after termination by nolle prosequi,
and there is an absence of authority on the point.
The preferable view, which
accords with practice, is that stated in Allen: the entry of a nolle
prosequi brings proceedings on the indictment to an end without barring a
subsequent prosecution on a fresh
indictment[97].
- The
prosecution of indictable offences in all Australian jurisdictions is now
conferred on a statutory office holder, the Director
of Public Prosecutions. In
each jurisdiction, the Director of Public Prosecutions has power to terminate
the prosecution of proceedings
on
indictment[98].
In each jurisdiction, the Attorney-General retains the power to enter a nolle
prosequi, although in the majority of them the power
is now sourced in
statute[99].
In New South Wales, Victoria and South Australia the Attorney-General's power in
this respect continues as an incident of office.
As a matter of practice, the
occasions on which the prosecution of a person is terminated by the
Attorney-General entering a nolle
prosequi are likely to be rare.
- The
appeal should not be decided on the narrow footing that the appellant's
prosecution was terminated under the statutory power,
and not in the exercise of
the Attorney-General's prerogative power. The power under s 7(2)(b) is in
substance and effect the same as the power to enter a nolle prosequi.
A principled distinction between termination under s 7(2)(b) and
other forms of termination?
- The
joint reasons in Smith drew a distinction between the functions of the
Attorney-General when declining to find a bill following a committal for trial
and
when terminating proceedings by the entry of a nolle
prosequi[100].
The same distinction is evident in the division of functions in s 7(2)(a) and
(b). The respondent submits that the distinction provides a principled basis
for the Davis exception, at least in some cases terminated by entry of a
nolle prosequi or by direction under s 7(2)(b).
- The
respondent's argument is that the determination of whether or not to find a bill
of indictment involves an assessment of the
legal merit of the prosecution. By
contrast, the respondent points out that the decision not to take further
proceedings against
a person may be unconnected to the strength of the
prosecution case. The decision to take no further proceedings against the
appellant
is said to be such a case: the appellant had served all but a few
months of the non-parole period of the sentence imposed on her
in 1991 at the
time the Court of Criminal Appeal quashed her convictions and ordered a new
trial. The inference is open that the
Director determined to take no further
proceedings against her for utilitarian reasons having nothing to do with the
cogency of the
prosecution case. The respondent says that it would be a scandal
in the administration of justice to permit recovery of damages
for malicious
prosecution in circumstances in which a nolle prosequi has been entered on a
strong prosecution case.
- The
respondent calls in aid decisions of the Supreme Court of Illinois, in which the
circumstances surrounding the entry of a nolle
prosequi have been examined to
determine whether its entry is "not indicative of the innocence of the
accused"[101].
However, the decisions are concerned with proof of the termination of the
prosecution. In the same connection, the Supreme Court
of Canada in Miazga v
Kvello Estate commented that "a live issue may arise whether the termination
of the proceedings was 'in favour' of the plaintiff" in the case of
a
termination that is not an adjudication on the merits, such as a settlement or a
plea
bargain[102].
- In
Miazga the elements of the tort were stated consistently with the
statement in A v New South
Wales[103].
Decisions in other common law jurisdictions also accord with A v New South
Wales in describing the tort of malicious prosecution as comprising the four
elements summarised earlier in these
reasons[104].
The respondent's argument did not identify to which of those elements proof of
the plaintiff's innocence is relevant in a case terminated
for any reason by the
entry of a nolle prosequi (or under the equivalent statutory power).
- The
respondent's submission wrongly assumes that other forms of termination
favourable to the plaintiff incorporate an element of
"merit assessment". The
termination of a prosecution may be for a technical reason that is unconnected
to the strength of the prosecution
case. The termination is nonetheless one
favourable to the plaintiff such as to maintain the civil
action[105].
For example, the decision not to find a bill of indictment may be taken for
reasons which are not connected to the strength of
the prosecution
case[106].
The requirement that the plaintiff prove favourable termination, as earlier
explained, is concerned with consistency of judicial
decisions. Proof of
favourable termination does not involve an inquiry into the underlying merits of
the prosecution. The respondent
was right to acknowledge in drafting the
separate question that the prosecution had terminated in favour of the
appellant.
- The
respondent's submissions are apt to overlook two things. First, the appellant
must prove the absence of reasonable and probable
cause before she can recover
in the civil action. Secondly, for whatever reason, the appellant has not been
convicted of the offences
charged in counts 1, 2, 5, 6 and 7 of the indictment.
In the event that the appellant is able to prove that her prosecution by persons
for whom the respondent is vicariously liable was instigated or continued
maliciously and without reasonable and probable cause,
her recovery in the civil
action would not scandalise the administration of justice.
- The
circumstances in which this Court will depart from a previous decision were the
subject of recent consideration in Wurridjal v The
Commonwealth[107].
The appellant is right to say that the reasoning in Davis is undermined
by subsequent authority. As has been observed, the conclusion that Mr Gell
was required to prove his innocence did
not stem from doubts that the entry of
the nolle prosequi was a favourable termination of the prosecution. All three
Justices accepted
that it was. Their reasoning, that proof of innocence was an
element of the tort, cannot stand with Smith and A v New South
Wales.
- There
is no principled reason to distinguish a prosecution terminated by the entry of
a nolle prosequi by the Attorney-General or
a direction by the Director under
the statutory power from other forms of termination falling short of acquittal.
- The
Davis exception produces an anomalous outcome. Were the decision of the
Court of Appeal to stand, the appellant would be entitled to lead
evidence at
the trial of matters tending to establish her innocence that were unknown to the
respondent at the time the prosecution
was commenced and maintained. However,
material that has come to light since the prosecution was commenced and
maintained tending
to establish her guilt would not be admissible on the issue
of reasonable and probable cause. The unsatisfactory nature of that
outcome was
noted in
Smith[108]:
"In
the course of proving facts on which he based the prosecution, the defendant may
sometimes succeed in raising a doubt of the plaintiff's
innocence. When this
happens an absence of reasonable and probable cause is hardly likely to be
found. But it would be surprising
if a defendant could go into the guilt or
innocence of the plaintiff as a separate issue, though on the issue of
reasonable and probable
cause he is not permitted to prove facts which he did
not know at the time of the prosecution even when the facts amount to the
highest
degree of objective cause for the prosecution, namely, proof of the real
guilt of the accused."
- Davis
should not be followed.
Orders
- There
should be orders as follows:
1. Special leave to appeal granted.
- The
appeal be treated as instituted and heard instanter and allowed with costs.
- Set
aside that part of order (b) of the Court of Appeal of the Supreme Court of New
South Wales made on 2 May 2012 dismissing the
appeal with costs and, in
lieu thereof, order that:
(a) appeal allowed with costs; and
(b) the answer of Davies J to question A of the respondent's notice of
motion filed on 16 May 2011 be set aside and, in lieu thereof,
question A
be answered "No".
- The
respondent pay the appellant's costs of the separate determination before Davies
J.
- GAGELER J.
The majority holding in Commonwealth Life Assurance Society Ltd v
Smith[109]
was that "[e]xcept in the case of a nolle prosequi covered by the
decision in Davis v
Gell[110]
... the guilt or innocence of the plaintiff is not an issue going to the cause
of action in malicious
prosecution"[111].
The question is whether the exception stated in that holding should be
maintained. It should not. Davis should be overruled. The common law
of Australia should be declared to be that the guilt or innocence of the
plaintiff is never an
issue going to the cause of action in malicious
prosecution.
- The
reasoning in Davis was founded on the proposition that it was an element
of every cause of action in malicious prosecution that the plaintiff was
innocent[112].
The reasoning was that termination of a prosecution by conviction or acquittal
created a res judicata foreclosing any issue of guilt or innocence.
Termination by other means left innocence to be proved by the
plaintiff[113].
Entry of a nolle prosequi terminated the prosecution, but did not create
a res judicata. In the case of a prosecution terminated by entry of a
nolle prosequi, it therefore remained for the plaintiff in an action for
malicious prosecution to lead evidence to establish the fact of
innocence[114].
- No
part of that reasoning survived Smith. The proposition that it
was an element of every cause of action in malicious prosecution that the
plaintiff was innocent was rejected.
But, it was said, "[t]here was
controversy" about whether entry of a nolle prosequi was sufficient to
establish another element of the cause of action in malicious prosecution. That
other element was that the prosecution
proceedings must have terminated in the
plaintiff's favour. The controversy was "as to what terminated proceedings, as,
eg, whether
a nolle prosequi ... was a
termination"[115].
It was seen not to be necessary to resolve that controversy in Smith
because the case was not one where the prosecution proceedings had been
terminated by a nolle
prosequi[116].
The case was one where the proceedings had been terminated by refusal to file an
indictment. Three reasons were nevertheless identified
for the rule that the
prosecution proceedings must have terminated in the plaintiff's favour. The
first was to prevent the collateral
questioning of a conviction. The second was
to prevent imputations in one proceeding against the justice of another
proceeding still
pending. The third, "from which the conclusion in Davis
... was deduced", was that only a terminated proceeding could be shown to be
without
foundation[117].
It was sufficient for the purpose of the decision in Smith to note that
those three reasons for the rule did "not affect the nature and application of
the rule itself" and did not have "an
independent and further operation in
imposing some additional condition as a necessary element in the cause of action
for malicious
prosecution"[118].
It was held that, contrary to the conclusion deduced in Davis, the third
reason for the rule did not turn on equating acquittal, or any other form of
termination, with the establishment of
innocence[119].
The decision in Davis "covered" only a case of a nolle prosequi
and, on principle, was not to be "extended
further"[120].
- Contemporaneous
commentary described the attitude of the majority in Smith to the
decision in Davis as "that of those who come neither to praise nor yet to
bury"[121].
The time to bury Davis is now.
- The
controversy referred to in Smith about the effect of a nolle prosequi
has now long been resolved. At common law, the entry of a nolle
prosequi terminates proceedings on an indictment even though it does not
prevent new proceedings being brought on a new
indictment[122].
- Termination
of prosecution proceedings by entry of a nolle prosequi should be held to
be sufficient to establish the element of the cause of action in malicious
prosecution that requires prosecution
proceedings to have terminated in the
plaintiff's favour. The Full Court of the Supreme Court of New South Wales
properly so held,
after Smith, in Mann v
Jacombe[123].
To treat termination of proceedings by entry of a nolle prosequi as a
termination in the plaintiff's favour for the purpose of an action in malicious
prosecution is consistent with the first two
reasons identified in Smith
for the rule that prosecution proceedings must have terminated in the
plaintiff's favour. It is no less consistent with the third
reason than was the
form of termination in Smith itself, being refusal to file an
indictment.
- Principle
as articulated in Smith told against the decision in Davis being
extended. It tells equally against the decision in Davis being
maintained. Even if entry of a nolle prosequi were insufficient to
establish the element of malicious prosecution that the prosecution proceedings
have been terminated in the plaintiff's
favour, the principled result would not
be to apply Davis. The principled result would rather be that no action
for malicious prosecution would lie. There is no principled reason why the
absence of one element of the cause of action in malicious prosecution should be
capable of being remedied by the importation of
another element that otherwise
forms no part of the cause of action.
- In
the present case, Ms Beckett brings an action in malicious prosecution
against the State of New South Wales. At the request of
the State of New South
Wales questions were reserved for separate determination in the Supreme Court of
New South Wales. The questions
expressly accepted that, insofar as prosecution
proceedings against Ms Beckett had terminated by direction of the Director
of Public
Prosecutions under s 7(2)(b) of the Director of Public
Prosecutions Act 1986 (NSW) ("the DPP Act"), those prosecution proceedings
had terminated in her favour. The questions asked whether Ms Beckett needs
to prove her innocence.
- The
answer is that Ms Beckett does not need to prove her innocence.
- The
primary judge (Davies J) and the Court of Appeal (Beazley and
McColl JJA and Tobias AJA) gave a different answer because, being
bound by Davis, they held that no principled distinction could be drawn
between a case of proceedings terminated by the entry of a nolle prosequi
and a case of proceedings terminated by direction under s 7(2)(b) of
the DPP Act. The overruling of Davis makes any question about whether
such a distinction can or should be drawn redundant. Without error on the part
of the Court of Appeal,
special leave to appeal should be granted and the appeal
should be allowed.
- For
these reasons, I agree with the orders proposed in the joint reasons for
judgment.
[1] Director of Public Prosecutions
Act 1986 (NSW),
s 7(2)(b).
[2] (1938) 59 CLR 527;
[1938] HCA 2.
[3] (1924) 35 CLR 275;
[1924] HCA
56.
[4] R v Dunn [1843] EngR 60; (1843) 1 Car &
K 730
[174 ER 1009];
R v Colling (1847) 2 Cox CC 184;
R v Rowlands
[1851] EngR 926; (1851) 17 QB 671
[117 ER 1439];
R v Allen (1862) 1 B & S 850 [121 ER
929].
[5] Broome v Chenoweth [1946] HCA 53;
(1946)
73 CLR 583 at 599 per Dixon J;
[1946] HCA 53;
R v Sneesby [1951] St R Qd
26;
R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35.
[6] A v New South Wales [2007] HCA 10;
(2007)
230 CLR 500 at 502
[1] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and
Crennan JJ;
[2007] HCA 10.
[7] A v New South Wales [2007] HCA 10;
(2007)
230 CLR 500 at 520
[59] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and
Crennan JJ.
[8] A v New South Wales [2007] HCA 10;
(2007)
230 CLR 500 at 520
[59] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and
Crennan JJ.
[9] See
Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 538-540 per Rich, Dixon, Evatt and
McTiernan JJ.
[10] Waterer v Freeman (1792)
Hob 266 at 267
[1792] EngR 818;
[80 ER 412 at 413];
Gilding v Eyre [1861] EngR 793;
(1861) 10 CB (NS) 592
at 604
[142 ER 584 at 589];
Varawa v Howard Smith Co Ltd [1911] HCA 46;
(1911) 13 CLR 35
at 47 per Griffith CJ, 74-75 per O'Connor J;
[1911] HCA 46.
[11] Basebé v Matthews
(1867) LR 2 CP 684 at 687 per Byles J;
Varawa v Howard Smith Co Ltd
[1911] HCA 46;
(1911) 13 CLR 35 at 47 per Griffith CJ, 82-83 per Isaacs J.
[12] Castrique v Behrens
(1861) 3 El & El 709 at 722-723
[1861] EngR 344;
[121 ER 608 at 613];
Basebé v
Matthews (1867) LR 2 CP 684.
[13] Varawa v Howard Smith Co
Ltd [1911] HCA 46;
(1911) 13 CLR 35 at 89 citing
Bynoe v Bank of England [1902] 1 KB
467;
Davis v Gell [1924] HCA 56;
(1924) 35 CLR 275 at 289-292 per Isaacs ACJ;
Salmond,
The Law of Torts, 6th ed (1924) at 595.
[14] See
Varawa v Howard Smith Co
Ltd [1911] HCA 46;
(1911) 13 CLR 35 at 89 per Isaacs J.
[15] Salmond,
The Law of
Torts, 6th ed (1924) at 595.
[16] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 278 per Isaacs ACJ.
[17] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 279.
[18] Gell v Davis [1924] VicLawRp 46;
[1924] VLR
315.
[19] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 282.
[20] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 284 citing (1871) LR 6 Ex 329 at 344.
[21] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 285 (emphasis in original).
[22] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 291-292.
[23] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 292.
[24] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 291.
[25] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 285, 292.
[26] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 294.
[27] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 296 citing
[1905] AC 168 at 170-171.
[28] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 296 citing
[1905] HCA 31;
(1905) 2 CLR 744 at 754 per Griffith CJ;
[1905] HCA
31.
[29] (1883) 11 QBD 440 at 455.
[30] Davis v Gell [1924] HCA 56;
(1924) 35
CLR 275 at 296-297.
[31] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 536 citing
Balbhaddar Singh v
Badri Sah AIR 1926 PC 46.
[32] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 532.
[33] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 532 per Rich, Dixon, Evatt and
McTiernan JJ.
[34] (1883) 11 QBD 440 at 455.
[35] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 541 referring to
Basebé v
Matthews (1867) LR 2 CP 684 at 687 per Byles J.
[36] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 532-533, 540-541 citing Bullen and
Leake,
Precedents of Pleadings, 2nd ed (1863) at 307; 3rd ed (1868) at
355; 8th ed (1924);
Chitty's Pleading,
7th ed (1844), vol 2 at 441
et seq; Buller,
An Introduction to the Law Relative to Trials at Nisi
Prius, 4th ed (1785);
Chitty,
Criminal Law, (1816) at 835 et
seq;
Salmond on the Law of Torts, 8th ed (1934) at 649 et seq;
Winfield,
A Text-Book of the Law of Tort, (1937) at 643 et seq;
Winfield,
The History of Conspiracy and Abuse of Legal Procedure,
(1921) at 118 et seq;
Winfield,
The Present Law of Abuse of Legal
Procedure, (1921) at 174 et seq;
Stephen,
The Law Relating to
Actions for Malicious Prosecution, (1888) at 107;
Halsbury's Laws of
England, 2nd ed, vol 22 at 10 et seq.
[37] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 543.
[38] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 537 referring to
AIR 1926 PC 46 at
49.
[39] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 534 citing (1704) 1 Salk 21 [91 ER
20];
[1795] EngR 1807; 2 Salk 456
[91 ER 394];
2 Salk 767 (Record)
[1795] EngR 1805;
[91 ER 632];
3 Salk 245 [91 ER
803]; 6 Mod 261
[87 ER 1008]; 11 Mod 56
[88 ER 882]; Holt 497
[1738] EngR 359;
[1738] EngR 359;
[90 ER 1173].
[40] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 535 citing Winfield,
A Text-Book
of the Law of Tort, (1937) at 647-648.
[41] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 534.
[42] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 550.
[43] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 552.
[44] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 552.
[45] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 552-553.
[46] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 535 per Rich, Dixon, Evatt and
McTiernan JJ.
[47] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 543 per Rich, Dixon, Evatt and
McTiernan JJ.
[48] Catt (1993) 68 A Crim R
189.
[49] Crimes Act 1900 (NSW),
s 474B.
[50] Crimes Act 1900 (NSW),
s 474C(1)(b).
[51] Criminal Appeal Act 1912
(NSW),
s 12(2).
[52] R v Catt [2005] NSWCCA
279.
[53] Beckett v New South Wales
(No 1) [2011] NSWSC 818;
(2011) 210 A Crim R 105 at 113
[32].
[54] Beckett v New South Wales
(No 1) [2011] NSWSC 818;
(2011) 210 A Crim R 105 at 114
[34].
[55] Beckett v New South Wales
(No 1) [2011] NSWSC 818;
(2011) 210 A Crim R 105 at 115
[42].
[56] Beckett v New South Wales
(No 1) [2011] NSWSC 818;
(2011) 210 A Crim R 105 at 125
[68].
[57] Beckett v New South Wales
(No 1) [2011] NSWSC 818;
(2011) 210 A Crim R 105 at 125
[72].
[58] Beckett v State of New South
Wales [2012] NSWCA 114 at
[89(c)].
[59] Beckett v State of New South
Wales [2012] NSWCA 114 at
[89(d)].
[60] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 535 per Rich, Dixon, Evatt and
McTiernan JJ.
[61] New South Wales Act 1823
(Imp) (4 Geo IV c 96), s 4;
Australian Courts Act 1828 (Imp) (9 Geo IV c
83), s 5.
[62] The term "indictment" is used
in these reasons consistently with the practice in New South Wales. It is
interchangeable with "information"
as that term is used in the
Australian
Courts Act 1828 (Imp), s 5: see
Fraser v The Queen (No 2)
(1985) 1 NSWLR 680 at 689-691 per McHugh JA;
R v Hull (1989) 16
NSWLR 385 at 388-390.
[63] Barton v The Queen
[1980] HCA 48;
(1980) 147 CLR 75 at 92 per Gibbs ACJ and Mason J;
[1980] HCA 48.
[64] Gilchrist v Gardner
(1891) 12 LR (NSW) (L) 184.
[65] Director of Public
Prosecutions Act 1986 (NSW),
s 33(2).
[66] Director of Public
Prosecutions Act 1986 (NSW),
s 28(1).
[67] Director of Public
Prosecutions Act 1986 (NSW),
s 30.
[68] (1998) 99 A Crim R 491 at 494
per Cole JA (Gleeson CJ and Barr J concurring).
[69] GKA (1998) 99 A Crim R
491 at 496.
[70] GKA (1998) 99 A Crim R
491 at 494.
[71] R v Wylie (1919) 83 JP
295 at 295.
[72] GKA (1998) 99 A Crim R
491 at 496.
[73] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 534 per Rich, Dixon, Evatt and
McTiernan JJ.
[74] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 535 per Rich, Dixon, Evatt and
McTiernan JJ citing Winfield,
A Text-Book of the Law of Tort, (1937)
at 648.
[75] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 535 per Rich, Dixon, Evatt and
McTiernan JJ citing (1891) 12 LR (NSW) (L) 184.
[76] Gilchrist v Gardner
(1891) 12 LR (NSW) (L) 184 at 187.
[77] Gilchrist v Gardner
(1891) 12 LR (NSW) (L) 184 at 187.
[78] Commonwealth Life Assurance
Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 535 per Rich, Dixon, Evatt and
McTiernan JJ.
[79] [1996] SASC 5679;
(1996) 66 SASR 450.
[80] Question of Law Reserved on
Acquittal (No 3 of 1995) [1996] SASC 5679;
(1996) 66 SASR 450 at 458.
[81] Question of Law Reserved on
Acquittal (No 3 of 1995) [1996] SASC 5679;
(1996) 66 SASR 450 at 458.
[82] Edwards,
The Attorney
General, Politics and the Public Interest,
(1984) at 444.
[83] (1704) 6 Mod 261
[87 ER 1008];
11 Mod 56
[88 ER 882].
[84] (1713) 10 Mod 152
[88 ER 670].
[85] (1862) 1 B & S 850 at 854
per Cockburn CJ, 855 per Crompton J
[1862] EngR 309;
[121 ER 929 at 931].
[86] Chitty,
Criminal Law,
(1816) at 480.
[87] Archbold,
Practice of the
Crown Office, (1844) at 62.
[88] [1795] EngR 3326; (1704) 1 Salk 21
[91 ER 20]; 2
Salk 456
[91 ER 394];
2 Salk 767 (Record)
[1795] EngR 1805;
[91 ER 632];
3 Salk 245 [91 ER 803]; 6
Mod 261
[87 ER 1008]; 11 Mod 56
[88 ER 882]; Holt 497
[1738] EngR 359;
[90 ER 1173].
[89] (1704) 11 Mod 56 at 56 [88 ER
882 at 882] (emphasis in original).
[90] (1704) 6 Mod 261 at 261 [87 ER
1008 at 1009].
[91] (1704) 11 Mod 56 at 56 [88 ER
882 at 882].
[92] (1704) 11 Mod 56 at 56 [88 ER
882 at 882].
[93] (1862) 1 B & S 850 at 855
[1862] EngR 309;
[121 ER 929 at 931] (footnote omitted).
[94] R v Allen (1862) 1 B
& S 850 at 855
[1862] EngR 309;
[121 ER 929 at 931] citing Archbold,
Practice of the Crown
Office, (1844) at 62.
[95] R v Allen (1862) 1 B
& S 850 at 856
[1862] EngR 309;
[121 ER 929 at 931].
[96] R v Ridpath (1713) 10
Mod 152 at 153
[88 ER 670 at 671];
R v Mitchel (1848) 3 Cox CC 93; and
see Stephen,
A History of the Criminal Law of England, (1883), vol 1 at
496.
[97] This is consistent with the
drafting of the Griffith Code, which at s 589 provided that on the court
being informed that the Crown
will not proceed further upon any indictment "the
accused person is to be discharged from any further proceedings upon that
indictment."
The
Criminal Code (Q) so provides in s 563(3).
[98] Director of Public
Prosecutions Act 1983 (Cth),
s 9(4);
Director of Public Prosecutions
Act 1986 (NSW),
s 7(2);
Criminal Procedure Act 2009 (Vic),
s 177(1);
Director of Public Prosecutions Act 1991 (SA),
s 7(1)(e) and
Criminal Law Consolidation Act 1935 (SA),
s 276;
Director of Public Prosecutions Act 1984 (Q),
s 10(1)(a) and
Criminal Code (Q), s 563;
Director of Public Prosecutions Act
1991 (WA),
ss 11 and
19(3) and
Criminal Procedure Act 2004 (WA),
s 87;
Director of Public Prosecutions Act 1973 (Tas),
s 12(1)(a)(iii);
Director of Public Prosecutions Act (NT),
ss 12(1) and 20(3) and
Criminal Code (NT), s 302;
Director
of Public Prosecutions Act 1990 (ACT),
s 7(6).
[99] Judiciary Act 1903
(Cth),
s 71;
Director of Public Prosecutions Act 1986 (NSW),
s 30;
Public Prosecutions Act 1994 (Vic),
s 25(2);
Criminal Code
(Q), s 563;
Criminal Procedure Act 2004 (WA),
s 87(3);
Criminal
Code (Tas), s 350;
Criminal Code (NT), s 302;
Director of
Public Prosecutions Act 1990 (ACT),
s 7(6).
[100] Commonwealth Life
Assurance Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 543 per Rich, Dixon,
Evatt and McTiernan JJ.
[101] Swick v Liautaud 662
NE 2d 1238 at 1242-1243 (Ill 1996) citing Restatement, Second, Torts
§§659, 660 and 661;
McKenney v Jack Eckerd Co 402 SE 2d 887 at
888 (SC 1991);
Wynne v Rosen 464 NE 2d 1348 (Mass 1984); and see
Cult
Awareness Network v Church of Scientology International 685 NE 2d 1347 at
1354 (Ill 1997).
[102] [2009] 3 SCR 339 at 367
[54].
[103] Miazga v Kvello
Estate [2009] 3 SCR 339 at 346-347 [3].
[104] Mills v Kelvin &
James White Ltd 1913 SC 521 at 527;
Balbhaddar Singh v Badri Sah AIR
1926 PC 46, extracts of which appear in
Commonwealth Life Assurance Society
Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 535-538;
Martin v Watson [1996] AC
74 at 80;
Van Heeren v Cooper [1999] 1 NZLR 731 at 740-742;
Gregory v
Portsmouth City Council [2000] 1 AC 419 at 426;
Jae Hoon Oh v
Richdale [2005] 2 HKLRD 285 at 292 [12].
[105] Wicks v Fentham
[1791] EngR 1361;
(1791) 4 TR 247 [100 ER 1000].
[106] Office of the Director of
Public Prosecutions for New South Wales,
Prosecution Guidelines of the Office
of the Director of Public Prosecutions for New South Wales, (2007) at 8-10,
13-14.
[107] [2009] HCA 2;
(2009) 237 CLR 309 at
350-353
[65]- [71], 357-359 [82]-[86] per French CJ;
[2009] HCA 2; see also
Queensland v The Commonwealth [1977] HCA 60;
(1977) 139 CLR 585 at 592-594 per
Barwick CJ, 598-601 per Gibbs J, 602-604 per Stephen J, 620-631
per Aickin J;
[1977] HCA 60;
John v Federal Commissioner of Taxation
[1989] HCA 5;
(1989) 166 CLR 417 at 438-440 per Mason CJ, Wilson, Dawson, Toohey and
Gaudron JJ, 450-453 per Brennan J;
[1989] HCA 5.
[108] Commonwealth Life
Assurance Society Ltd v Smith [1938] HCA 2;
(1938) 59 CLR 527 at 542-543 per Rich, Dixon,
Evatt and McTiernan JJ.
[109] (1938) 59 CLR 527;
[1938]
HCA 2.
[110] (1924) 35 CLR 275;
[1924]
HCA 56.
[111] [1938] HCA 2;
(1938) 59 CLR 527 at
543.
[112] [1924] HCA 56;
(1924) 35 CLR 275 at 282,
285.
[113] [1924] HCA 56;
(1924) 35 CLR 275 at 289,
292, 296.
[114] [1924] HCA 56;
(1924) 35 CLR 275 at 292,
294, 297.
[115] [1938] HCA 2;
(1938) 59 CLR 527 at
537.
[116] [1938] HCA 2;
(1938) 59 CLR 527 at
543.
[117] [1938] HCA 2;
(1938) 59 CLR 527 at
539-540.
[118] [1938] HCA 2;
(1938) 59 CLR 527 at
540.
[119] [1938] HCA 2;
(1938) 59 CLR 527 at
540-541.
[120] [1938] HCA 2;
(1938) 59 CLR 527 at
543.
[121] Donovan, "The Effect of a
Nolle Prosequi in Relation to the Action for Malicious Prosecution",
(1939)
12 Australian Law Journal 457 at 463.
[122] Gilchrist v Gardner
(1891) 12 LR (NSW) (L) 184;
Broome v Chenoweth [1946] HCA 53;
(1946) 73 CLR 583 at 599;
[1946] HCA 53.
[123] [1961] NSWR 273.
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