Mensinga v The Commissioner Afp & the Dpp [2001] ACTSC 46 (18 May 2001)

Last Updated: 11 June 2002

Nicole Maree Mensinga & Gail Maree Mesinga v The Commissioner Australian Federal Police Force & the Director of Public Prosecutions [2001] ACTSC 46 (18 May 2001)

CATCHWORDS

PRACTICE AND PROCEDURE - Application to strike out statement of claim on the grounds of no reasonable cause of action - Whether Director of Public Prosecutions was negligent in failing to fulfil its statutory functions - Whether duty of care owed by Director of Public Prosecutions in its discretion to prosecute - Policy considerations.

TORTS - Negligence - Careless performance of public duties - Immunities of Police and Director of Public Prosecution ACT.

Director of Public Prosecutions Act 1990

Judiciary Act 1903 (Cth)

Australian Capital Territory (Self Government Act) 1988 (Cth)

Victims of Crime Act 1994

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

Clyne v Attorney General (1984) 55 ALR 624

Courtney v Tasmania [2000] TASSC 83

Hill v Chief Constable of West Yorkshire [1987] UKHL 12; [1989] AC 53

Elguzouli-Daf v Commissioner of Police [1995] QB 335

Crimmins v Stevedoring Committee ( [1999] HCA 59, (1999) 200 CLR 1

Pyrennees Shire Council v Day [1998] HCA 3, (1998) 192 CLR 330

Kitto J in Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397

Victims of Crime (Financial Assistance) Act 1983

Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297

No. SC 1034 of 1999

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 18 May 2001

IN THE SUPREME COURT OF THE )

) No. SC 1034 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NICOLE MAREE MENSINGA

1^st Plaintiff

AND: GAIL MAREE MENSINGA

2^nd Plaintiff

AND: THE COMMISSIONER AUSTRALIAN FEDERAL POLICE FORCE

1^st Defendant

AND: THE DIRECTOR OF PUBLIC PROSECUTIONS

2^nd Defendant

ORDER

Coram: Master T. Connolly

Date: 18 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The Statement of Claim be struck out as against the second defendants.

2. The parties be heard as to costs and subsequent orders.

1. This is an application by the second defendant, the Director of Public Prosecutions for an order pursuant to Order 29 rule 4 striking out the statement of claim on the ground that it discloses no reasonable cause of action. The statement of claim alleges that the first plaintiff was abducted and raped on 26 December 1993, and that the first plaintiff, and her mother, the second plaintiff, reported the matter to the Australian Federal Police, the first defendant, in May 1994. The statement of claim alleges that during 1994 the plaintiffs discussed the matter with a prosecutor in the employ of the second defendant. It further alleges that the perpetrator of the abduction and rape was not charged with any offence or prosecuted for any offence. It alleges that it was the duty of the second defendant to properly conduct the prosecution of the perpetrator, and that the second defendant acted negligently and failed to perform their statutory functions. The plaintiffs claim that as a consequence they have suffered damage by way of shock, emotional distress, anxiety and post traumatic stress disorder, and they bring this claim for damages for those personal injuries.

2. The second defendant argues that no cause of action in negligence lies against the Director of Pubic Prosecutions in respect of the conduct of prosecutions. There is much authority to support this proposition. In Emanuele v Hedley and Others (unreported, Supreme Court of ACT, Higgins J, 7 March 1997) the plaintiff, who had had certain criminal charges against him dismissed in this court, brought an action against those who had brought the prosecution, both in negligence and malicious prosecution. Justice Higgins stated at 35:

"There is no tortious liability towards an accused person for negligently investigating or prosecuting that person. If there was such a cause of action, a prosecutor would be liable for damages notwithstanding that there was no malice and no lack of reasonable and probable cause for the investigation and prosecution in question. That would make malicious prosecution and misfeasance in public office and, indeed, intentional infliction of harm by and unlawful act, otiose. It would also by pass the torts of defamation and injurious falsehood."

3. A similar conclusion was reached by Master Holt in the Tasmanian Supreme Court in Courtney v Tasmania [2000] TASSC 83.

4. The present case is not brought by a party who had been subject to a prosecution alleged to have been negligently brought, but rather by a party that alleges that the prosecution authorities were negligent in not bringing a prosecution. This is similar to the action considered by the House of Lords in Hill v Chief Constable of West Yorkshire [1987] UKHL 12; [1989] AC 53. In that case the parents of a young woman who had been killed by the offender known as the "Yorkshire Ripper" brought an action in negligence against the police alleging that their investigation of that serial killer had been so negligent that there had been a delay in apprehending him, and that during that delay their daughter had been killed. This action was struck out by the trial judge, and confirmed by the Court of Appeal. The House of Lords confirmed that no duty of care was owed by the police authorities to the plaintiff, essentially on public policy grounds. Lord Templeman said at 65:

"If this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties."

5. These are compelling public policy reasons against the imposition of a duty of care on a police service for an alleged failure to protect the citizen by not apprehending an alleged offender. They apply equally strongly to counter the proposition that a prosecution service may be liable in tort to an action by a victim of crime for a decision not to bring a prosecution. The potential liability of a prosecution service was considered by the English Court of Appeal in a suit brought by a person who had been charged with offences in circumstances that he alleged amounted to negligence. (Elguzouli-Daf v Commissioner of Police [1995] QB 335). While elements of negligence would have been made out, the Court of Appeal concluded that no duty of care lay on the Crown Prosecution Service (C.P.S). Lord Justice Steyn said at 349:

"Recognising that individualised justice to private individuals, or trading companies, who are aggrieved by careless decisions of C.P.S. lawyers, militates in favour of the recognition of a duty of care, I conclude that there are compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualised justice. I would rule that there is no duty of care owed by the C.P.S. to those it prosecutes."

6. In reaching this conclusion Steyn LJ had reasoned (at 349):

"While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The C.P.S. would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the C.P.S.".

7. These policy considerations against finding the existence of a duty of care when the prosecution authority has negligently brought a prosecution seem to me to be equally applicable when it is argued that the prosecution authority has negligently failed to bring a prosecution. Indeed, in the present case, which is based on a claim of negligently failing to prosecute, there is an added factor to be brought into consideration. This is the structure of the office of the Director of Public Prosecutions, established in this Territory under the Director of Public Prosecutions Act 1990, but following a similar model in the Commonwealth and other Australian states. Under this legislation the Director of Public Prosecutions is granted the discretion to bring prosecutions, and the authority to publish a prosecution policy and guidelines. This was done in the Australian Capital Territory in December 1991 by then Director Crispin Q.C., and the policy and guidelines have been published in subsequent annual reports of the Director of Public Prosecutions. In the section entitled, "The Decision to Prosecute" it is stated:

"It is sometimes assumed that every allegation of criminal conduct should culminate in a prosecution. Fortunately such a blanket approach has never formed part of the system of justice in England or Australia. Sir Hartley Shawcross Q.C., then the English Attorney General, explained the position to the House of Commons on 28 January 1951 in the following terms: `It has never been the rule in this country- and I hope it never will be- that suspected criminal offences must automatically be subject of prosecution. Indeed the very first regulations under which the Director of Public Prosecutions worked provided that he should....prosecute `whenever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest' That is still the dominant consideration.'"

8. While the public interest criterion has long been accepted as the dominant consideration in the exercise of the discretion vested in the Director of Public Prosecutions to bring a prosecution, the publication of the prosecution policy and guidelines are intended to bring greater transparency to the exercise of the discretion in individual cases. It seems to me that to introduce tortious liability on the part of an alleged victim of crime would fundamentally alter the way in which these discretions are to be exercised. This point was well illustrated in written submissions lodged by counsel for the second defendant, where Mr Erskine argued that:

"the decision to prosecute involves the balancing of many factors in the public interest, not all of which point in the same direction in any given case. While the victim's attitude is one of the factors that can be taken into account, it is only one of many factors, not all of which may be of any interest to the victim of a crime. For example, a victim may be entirely uninterested in factors such as the staleness of the alleged offence (para 2.5.(g)), the obscurity or obsolescence of the law (para 2.5(j)) or the possible counterproductivity of a prosecution (para 2.5(k)). Yet all these are matters properly to be considered by a prosecutor, whether bound by the specific paragraphs of the prosecution policy or not. If a prosecutor owed a duty of care to the victim of a crime, that duty would conflict in many cases with the much wider duty owed by a prosecutor to the public at large."

9. Counsel for the plaintiff furnished to the Court comprehensive written submissions outlining the recent development of the law in Australia concerning the existence of a duty of care owed by public authorities to the citizen. Mr O'Neill referred in particular to the test enunciated by McHugh J in Crimmins v Stevedoring Committee ( [1999] HCA 59, (1999) 200 CLR 1) where Honour said (at CLR 39):

"In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:

1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.

2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If not, then there is no duty.

4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.

5. Would such a duty impose liability with respect to the defendant's exercise of `core policy making' or `quasi legislative' functions? If yes, then there is no duty.

6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg the imposition of a duty is inconsistent with the statutory scheme. Or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority."

10. It seems to me that applying Justice McHugh's test in the present case must lead to an affirmative answer to question six, and the consequent finding that there is no duty of care. While the law in relation to the existence of a duty of care on a public authority may be said to be in something of a state of flux in Australia, all of the authorities, it seems to me, acknowledge the operation of some form of public interest or public policy test, and this is, in my view, sufficient in the case of an alleged duty of care on the Director of Public Prosecutions to deny the existence of a duty of care in relation to the exercise of the discretion to prosecute pursuant to the Director of Public Prosecutions Act 1990.

11. Counsel for the plaintiff further argued that the provisions of the Victims of Crime Act 1994, in particular section 4 of that Act which sets out governing principles for the way in which victims interests should be protected and advanced in the administration of justice, established a statutory duty of care the breach of which could give rise to an action in tort. It is established that:

"before a right of action in damages for breach of statutory duty arises, "the statute must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in damages for a breach of the duty so imposed"" (per Brennan CJ in Pyrennees Shire Council v Day [1998] HCA 3, (1998) 192 CLR 330 at 342 citing Kitto J in Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405)

12. There is nothing in the legislative history of the Victims of Crime Act to indicate that the governing principles set down in section 4 were intended to create a tortious action against the public authorities charged with the responsibility of administering criminal justice in this territory on the basis of a negligent breach of any of these principles. Indeed, the existence and legislative history of the statutory scheme of monetary compensation for victims of crime, now contained in the Victims of Crime (Financial Assistance) Act 1983 is, it seems to me, quite inconsistent with the existence of such an intention. Moreover, where such a breach of duty is pleaded in this case, it is pleaded against the Director of Public Prosecutions, and the existence of such a duty would, it seems to me, be incompatible with public policy for the reasons set down above. To develop a tortious action from the Victims of Crime Act 1994 would, it seems to me, require clear legislative intention to establish a new form of private action, inconsistent with established authority that denies such an action at common law. It was established in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 that a decision by the Attorney General to present an ex officio indictment is not reviewable by way of an action by the person affected, a decision followed by the Full Federal Court in Clyne v Attorney General (1984) 55 ALR 624 where it was held that s71 of the Judiciary Act 1903 (Cth) did not create a right for an accused person to require the exercise of the discretion by the Attorney General. The type of action that it is said arises from the Victims of Crime Act 1994 would be inconsistent with long established authority, and could only arise, it seems to me, if the existence of such a private action was clear from the statute. When considering whether such an action can arise from a statute:

"The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre existing state of the law, and , generally, the whole range of circumstances relevant upon a question of statutory interpretation" (per Kitto J in Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405, cited with approval by Brennan CJ in Pyrennes Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 at 342).

13. In the present case, I find there is no legislative intention to create a tortious action allowing a victim of crime to bring an action against the Director of Public Prosecutions.

14. It follows that I am satisfied that statement of claim as pleaded against the second defendant discloses no reasonable cause of action, and I make the order sought in the second defendant's notice of motion to strike out the statement of claim in so far as it effects the second defendant. I will hear the parties as to costs and any subsequent orders.

15. I should state that I have come to these conclusions without having to have regard to s33A of the Director of Public Prosecutions Act which provides a form of statutory immunity for the Director and officers for actions done in good faith in the exercise of their powers under the Act. This provision was introduced in 1995, and came into force in September 1995, and Mr Erskine conceded, correctly in my view, that as the alleged negligence in this case pre dated the introduction of the statutory immunity, the section would not be relevant. The form of the section does not seem to me to operate retrospectively, and in any event there are of course significant constitutional difficulties about legislation which seeks to extinguish a cause of action (Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297). Similar reasoning would apply to the relevant prohibition on acquisition of property in section 23 (1) of the Australian Capital Territory (Self Government) Act 1988 (Cth).

16. It is apparent from the Hansard that s 33A was introduced in response to concerns that, where the Director made public statements to explain a prosecution decision, in particular a decision not to bring or proceed with a prosecution, the Director might expose himself to an action in defamation. Although the immunity is cast in wider terms, the legislative history to s 33A does not indicate to me an intention on the part of the legislature that, absent s 33A, an action would lie for breach of statutory duty in the way pleaded in this case. Rather, the debate on s 33A seemed to proceed solely on the basis of providing a protection for a cause of action in defamation.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 18 May 2001

Counsel for the Plaintiff: Mr O'Neill

Solicitor for the Plaintiff: Tetlow Jansen & Doyle

Counsel for the 2^nd Defendant: Mr Erskine

Solicitor for the Defendant: ACT Government Solicitor

Date of hearing: 3 May 2001

Date of judgment: 18 May 2001