Clyne v State of New South Wales (No 1) [2011] NSWSC 629 (22 June 2011)

Last Updated: 18 August 2011

Supreme Court New South Wales

Case Title:	Clyne v State of New South Wales (No 1)
Medium Neutral Citation:	[2011] NSWSC 629
Hearing Date(s):	14-21 June 2011
Decision Date:	22 June 2011
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	1. In regard to the action for malicious prosecution in paragraphs 9, 10, 11, 12 and 12C of the fourth amended statement of claim, judgment for the defendant. 2. The plaintiff is to pay the defendant's costs with costs calculated as and from 2 June 2011 to be paid on an indemnity basis.
Catchwords:	TORTS - malicious prosecution - order pursuant to Part 29 r 10 of the UCPR
Legislation Cited:	Crimes Act 1900 Crown Proceedings Act 1988 Law Reform (Vicarious Liability) Act 1983 Uniform Civil Procedure Rules 2005
Cases Cited:	A v State of New South Wales [2007] HCA 10; 230 CLR 500 Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269
Texts Cited:
Category:	Interlocutory applications
Parties:	Janet Lorraine Clyne (Plaintiff) State of New South Wales (Defendant)
Representation
- Counsel:	Counsel M McAuley (Plaintiff) P Menzies QC/M Hutchings (Defendant)
- Solicitors:	Solicitors Collins & Thompson Solicitors (Plaintiff) Crown Solicitor's Office (Defendant)
File number(s):	2009/297847
Publication Restriction:

Judgment

1. By a fourth amended statement of claim the plaintiff brings proceedings against the State of New South Wales for damages (including damages for psychiatric injury) resulting from what she alleges to be her unlawful arrest and false imprisonment on 25 October 2003 and a malicious prosecution after she was served with a Court Attendance Notice alleging a breach of s 156 of the Crimes Act 1900 on 16 August 2007.

2. As at 16 August 2007 s 156 was in the following terms:

Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years.

3. Detective Senior Constable Cosgrove was one of the arresting police officers in 2003. He was also the informant in 2007.

4. The proceedings are brought pursuant to the Crown Proceedings Act 1988. The defendant accepts that it is vicariously liable for the acts and/or omissions of the police officer(s) pursuant to the Law Reform (Vicarious Liability) Act 1983.

5. At the close of the plaintiff's case the defendant sought an order pursuant to Part 29 r 9 of the Uniform Civil Procedure Rules 2005 ("UCPR") dismissing the claim for malicious prosecution on the ground that a judgment in favour of the plaintiff could not be supported and an order that the plaintiff pay the defendant's costs of that claim. Pursuant to Part 29 r 9(3) the plaintiff's counsel elected to decline to argue the question raised by the application. The defendant then made application under Part 29 r 10 for a judgment in its favour on the same basis. The operation of this rule mirrors an application at common law that there is no case to answer, save for the operation of r 10(4) which permits a defendant to adduce evidence with leave in the event that the application fails.

6. In dealing with a submission of no case to answer at common law the question to be decided is whether, taking the plaintiff's evidence at its highest, there is any evidence reasonably capable of satisfying the tribunal of fact that the matters sought to be proved have been established (see Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269). It was not submitted that there was any difference between the position at common law and the ambit and operation of Part 29 r 10(2) where the question is whether the Court is satisfied that, on the evidence given, a judgment for the plaintiff cannot not be supported.

7. Before considering the evidence relied upon to prove each of the elements of the tort of malicious prosecution and whether it is sufficient to support the plaintiff's claim, it is necessary to set out a chronology of relevant events, including the course of the investigation that culminated in the plaintiff's arrest. This is drawn largely from a large volume of documentary evidence tendered in the plaintiff's case.

8. On 26 March 2003 the plaintiff, then an employee at the Spit Junction Post Office and aged 43, informed police that at about 1.15pm the previous day she was at the front counter of the Post Office counting money from the morning's takings. She said a man came up to the counter and that she informed him that her section was closed. She said that he then said "Put that in here, all of it" and handed her a medium-sized envelope. She said he also placed a note on the counter which read "I've got a gun, I want the money". The plaintiff initially resisted the man's demand and picked up the money that was sitting on top of that till. She said that the man then leant over the counter and took all the money that she had in her hands, placed it inside the envelope, picked up the note and left. She then said that she notified the manager on duty and contacted police. The total money stolen was $2570. The plaintiff gave police a detailed description of the robber. She described him as being in his late 30s, of Middle Eastern appearance with a strong Middle Eastern accent. She went on:

He was about 5 foot 10 inches, dark skinned, dark eye[d] and [had] a big long pointed nose. He was wearing a dark blue or black faded t-shirt with no collar, a dark baseball cap and blue jeans. His hair was just past the hat and it was dyed blonde that had grown out. It appeared to be dirty, but he definitely had dark hair. The guy appeared to have done weights and was broad across the shoulders. I also noticed that he had really badly chewed finger nails, they had been chewed to half way down his nail.

She later prepared a COMFIT photographic image of the robber.

9. The COPS entry related to the incident records that a statement was not taken from the plaintiff by the police who attended the Post Office as she was being treated at the scene by ambulance officers for shock. The COPS entry also noted that the CCTV surveillance video recording equipment was not operating at the time of the robbery.

10. On 21 May 2003 a person described in the COPS entry as an unregistered informant, but later in the same entry identified as Daniel Munn, informed Detective Senior Constable Young as follows:

[That] he had a conversation with a male person he knew from a local pub on the northern beaches. The male approached him and discussed the issue of being a principal in a robbery offence at the Mosman Post Office. He was informed that an employee of the post office would ensure the video CCTV was not recording at the time of the intended offence. The informant was asked to act as a second principal by keeping "a look out". The offer to participate in the robbery was declined.

The informant later had a conversation with the offender who boasted about the commission of the offence. The offender stated he had attended the post office and met the female employee at the counter who handed him the proceeds of the robbery. The informant stated that the female employee was 41 years of age and currently on stress leave and would be seeking criminal compensation.

11. Preliminary enquiries were then made to assess the reliability of the information provided by Munn including enquiries at the address of the cousin of the person who had approached him (it would appear he was not named at this time). The COPS entry goes on to record the following:

The reliability of the informant is unknown. It is unknown how the informant has detailed knowledge of the armed robbery alleged by CLYNE ie age/CCTV/possible leave. Motive for providing the information was stated to be both personal and for financial reward. The version obtain[ed] from him at this stage cannot be challenged by Police.

12. The COPS entry goes on to record that Detective Senior Constable Cosgrove spoke with an officer within the investigation branch of Australia Post requiring production of the original file relating to the robbery which was by that date housed in Canberra.

13. On 28 May 2003 Munn again made contact with police and said that he had visited where he believed the suspect lived with his cousin. It was at that time that he provided the name Jamie Young. The COPS entry also noted that further enquiries were being made to validate the information from the informant and to confirm the identity of the suspect.

14. On 13 June 2003 Munn participated in an electronically recorded interview of 18 pages with Detectives Cosgrove and Young. On that day he was also registered as an informant with the New South Wales Police Service. In that interview he said as follows:

DSC Young: ...you continued before telling us about how an opportunity to be involved in this offence was presented to you by Jamie Young.

Munn: Yer.

DSC Young: I just want to go into that into a little bit more detail. Was it during a conversation that you had with Young that this idea came up?

Munn: ...yer, when we were drinking one day, I was around at his house and ... he said ... if you want to make some money just come over with me to the Post Office at Mosman, I know the girl that works there. She's told me that the cameras were down, so all we got to do is walk in and pick up a bag off her and then meet her after work and split the money with her.

DSC Young: When was that conversation?

Munn: That was the end of February, start of March.

15. He went on to inform police that Jamie Young told him about a week later that there was a couple of thousand dollars taken from the Post Office, that he believed that Jamie Young had received $800 (a figure which he said was ringing in his head for some reason) which was spent on alcohol and food and that the woman from the Post Office got the rest of the money. He also informed police that he knew the woman's name to be "Janet or Jeanette" and that she lived in Mosman.

16. He went on to say that Jamie Young told him that she intended to report to police that it was an armed robbery to support a claim for victims injury compensation. He said "I don't know what she said to police. But ... he did mention that she'd get compo ... she'd get paid for going on stress leave".

17. In June 2003 Detective Cosgrove submitted a formal request to obtain the telephone records of the plaintiff and Jamie Young from which he confirmed regular daily contact between them in the weeks prior to the robbery and telephone contact at 8.15 on the morning of the robbery and again within an hour of the alleged robbery.

18. On 8 July 2003 Luke Mason, an officer of Australia Post associated with the Corporate Security Group, forwarded to Detective Cosgrove a number of documents relating to the business which was conducted at the Spit Junction Post Office by the plaintiff in the days leading up to the reported armed robbery on 25 March 2003. Those documents also revealed that the plaintiff's cash management plan required that she not have more than $300 at her counter at any one time. There was also what was described as a data warehouse report for March 2003 which revealed that it was common practice for the plaintiff to hand over an amount of cash between midday and two o'clock (before she went to lunch). A report from Mr Mason received by police in October 2003 confirmed that Jamie Young and the plaintiff had previously worked together at Australia Post.

19. On 10 July 2003 a statement was obtained from Christine Walker, an area manager with Australia Post involved in the management of Post Offices between Mosman and the central coast including the Post Office at the Spit Junction. She informed police that the plaintiff was the victim of a robbery at the same Post Office the previous year which resulted in her having some time off work before she gradually returned to resume full-time duties. She noted that the second robbery was almost identical to the first (an attempted robbery) in the sense that the alleged robber used a note to demand money and that no other person was aware that the offence was taking place. She also confirmed that after the incident the plaintiff was declared unfit for work due to her reporting with post-traumatic stress which she claimed confined her to her home. Ms Walker informed police that she saw the plaintiff in the lounge area of a hotel in the CBD in the company of a man a short time after the alleged robbery.

20. Ms Walker went on to inform police that the plaintiff was the only person involved in the robbery on 25 March 2003 however there were a number of other employees working at the time who were unaware that the robbery was in process or had even taken place. She told police that at the time of the robbery the duress alarm was not activated despite staff being trained to activate the alarm in the event of a robbery. She confirmed that the Post Office is monitored by CCTV involving two cameras connected to two video recorders. She confirmed that on the day of the robbery the equipment was not working despite the fact that it was serviced by technicians within weeks of the incident. She said that it was the plaintiff's responsibility to ensure that the equipment was operating. Ms Walker went on to advise police that immediately after the incident the equipment was serviced again and found to be operating effectively and that it was used the day after the offence without incident.

21. On 23 September 2003 Detective Cosgrove wrote to the Victims Compensation Tribunal requesting information in relation to a compensation claim submitted by the plaintiff. In that correspondence he said:

At the present time police have reliable information that CLYNE has possible involvement in the matter and has not disclosed all information to investigating police. Police intend to arrest and interview CLYNE on Friday, 26 September 2003 and it is imperative that this information be released to investigating police before that date.

( I note that the evidence in the plaintiff's case was that her application for victims compensation was unsuccessful. The evidence was silent as to why that was the case.)

22. On 15 October 2003 the plaintiff was arrested at her home on suspicion of involvement in theft of money from Australia Post on 25 March 2003. On legal advice she declined to be interviewed and was released, without charge, within an hour of her arrest. The custody management record noted in the field headed "Release Details" that further evidence was required to substantiate a charge.

23. On 15 December 2003 the investigation was officially suspended on the CASE system.

24. On 6 October 2006 the plaintiff commenced proceedings in the District Court for unlawful arrest and false imprisonment.

25. On 23 October 2006 Detective Sgt Flaherty directed Detective Cosgrove pursuant to clause 9(1) of the Police Service Regulation 2000 to answer a series of questions in relation to the arrest of the plaintiff. He was directed not to discuss the matter with any other officer or to disclose any information to any other person without authority until the inquiry was complete. Those questions included the following:
    • A summary of the scope of the investigation which resulted in the attendance of police at the plaintiff's home on 15 October 2003;
    • The rationale and reason to the plaintiff's arrest; and
    • What action was taken after her release.

26. On 30 October 2006 Detective Cosgrove furnished a formal reply in which he provided detailed responses to each of the matters I have isolated above from a broader range of questions he was asked to address concerning the lawfulness of her arrest in the context of the civil proceedings the plaintiff had commenced in the District Court.

27. Detective Cosgrove provided a comprehensive chronology of the investigation, the evidence obtained from Munn and what he described as other circumstantial corroborative evidence supportive of his opinion that the plaintiff was not the victim of an armed robbery but rather was a principal or an accessory to stealing by handing money to Jamie Young in circumstances when she was not acting under threat or duress. He then set out the circumstances of the arrest inclusive of the fact that she was informed that she was a suspect and not a victim of an armed robbery as she had initially reported.

28. He went on to report that after the plaintiff was released from custody he intended to review all the available evidence and to speak with the informant again in an attempt to obtain a formal statement from him prior to any criminal charges being laid. He asserted that the investigation continued during the months of October and November and December 2003 with a number of enquiries being conducted (none of which were specified) but that on 15 December 2003 the case was suspended due to a lack of additional or other corroborative evidence to further implicate either the plaintiff or Jamie Young. He concluded the report by expressing his view that the matter remained unsolved and that the investigation was suspended but that it may be reopened at any time if additional evidence or information is obtained or forthcoming.

29. On 10 June 2007 Detective Cosgrove contacted Munn and the following day interviewed him electronically. On that date Munn signed a police witness statement and in which he produced a copy of the interview. The interview comprised 232 questions and answers. In the course of the interview he recounted his dealings with Jamie Young in relation to the offer for him to participate in the theft from the Post Office with the same level of detail as he had supplied when he first approached police in May 2003. He also confirmed that while he was not prepared to give evidence as a witness in Court at that time he was now willing to be a witness and to give evidence in proceedings brought by the police against those allegedly involved in the theft.

30. On 7 August 2007 Munn identified Jamie Young in a photo array identification. He is entirely dissimilar from the detailed description of the robber the plaintiff gave police in March 2003.

31. On 1 August 2007 Jamie Young participated in an electronically recorded interview with police in which he denied any involvement in the theft. He told police that he had spoken with the plaintiff on the morning of the robbery and again within an hour of the robbery in relation to make arrangements to meet for lunch. (I note that on 21 August 2007 Jamie Young was served with a Court Attendance Notice in respect of his involvement in the theft and on 25 August 2008 he entered a plea of guilty to that charge.)

32. On 8 August 2007 police obtain a statement from Mr Mason in which he provided the following information in regards to the CCTV equipment. He said as follows:

...A check of the equipment indicated that it had been stopped some time prior to the incident. My recollection is that some time around 10.30am the video stopped recording for an unknown reason... The in store CCTV equipment is serviced by a company called Bellbond Pty Ltd located at Strawberry Hills. A technician from this company attended the scene and examined the CCTV equipment. A report was completed by the technician that stated the settings and programming on both VCRs was alright. Both VCRs were set to LP and tapes inserted and rewound. It was noted that a possible cause for the VCRs not recording was a power surge, radio wave interference or age of the VCRs. The VCRs were only approximately four years old. The VCRs were regularly serviced and there was no previous report of malfunction recent to the incident.

33. Contrary to Ms Walker's information, according to Mr Mason the hold-up alarm activation switch was activated by the plaintiff on the day of the robbery.

34. On 15 August 2007 police obtained a statement from Mr Hill, the manager of the Spit Junction Post Office, in which he gave further information as to his dealings with the CCTV equipment. He confirmed that a monthly register was maintained to record the service history of the equipment. He said as follows:

At a regular time throughout each month I would test the security systems for myself in order to ensure that everything was in working order. I kept a register which recorded the date on which I conducted such checks. In viewing the register that I kept, I checked the security system in August, September, October, November and December of the year 2002... On 8 January 2003, I requested that Bellbond Pty Ltd conduct a maintenance check. My records indicate that Bellbond serviced the security system on 13 January 2003. To the best of my knowledge no service difficulties were found or identified, the security system was found to be in working order. In February 2003 I was on leave and did not personally conduct a check, although another staff member should have done so.

I have a recollection that in January 2003 there was a malfunction with at least one of the VHS recorders. To the best of my knowledge I recall that the machine did not record. I recall that Bellbond were called to test the machine and found no apparent problem.

35. On 16 August 2007 Constable Retamal provided a statement confirming that after a thorough search of police archives, old and current exhibit books, DNA exhibit books and miscellaneous property books, no VHS tape was entered as an exhibit around the time of the robbery.

36. On 16 August 2007 the plaintiff was served with a Court Attendance Notice.

37. From that date to the commencement of criminal proceedings on 2 April 2008 further statements were obtained which were largely confirmatory of the information police had available at the time of service of the Court Attendance Notices. A statement was obtained from Mr Hinsby who was nominated by Munn as having some knowledge of, or even participation in the theft, which he denied.

38. The four elements of the tort of malicious prosecution the plaintiff is obliged to establish on the balance of probabilities are:

(i) the institution of criminal proceedings by the defendant;

(ii) the termination of the proceedings in favour of the plaintiff;

(iii) absence of reasonable and probable cause; and

(iv) malice.

39. The defendant does not submit there is any deficiency in the evidence in respect of the first two elements. It was common ground that on 10 December 2008, after a five day hearing in the Local Court, the criminal proceedings against the plaintiff for larceny as a servant, commenced by the service of the Court Attendance Notice, were dismissed.

40. In so far as the third element is concerned, the defendant submitted that the plaintiff's evidence is insufficient to prove, on the probabilities, an absence of reasonable probable cause and, in so far as the fourth element is concerned, that the evidence is insufficient to prove the presence of malice.

41. It is not necessary for the defendant to establish a deficiency in respect of both elements for the application under Part 29 r 10 to be successful. Accordingly, even were I satisfied that there was some evidence of malice, evidenced by the informant's attitude toward the plaintiff when he served the Court Attendance Notice as deposed to by the plaintiff and her partner and/or by the suggestion that the proceedings were commenced by the informant as a "payback" for her bringing proceedings for wrongful arrest and false imprisonment, that would not be enough to support a verdict in her favour.

42. In A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [56] Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said in their joint judgment:

Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge.

43. In the judgment at [58] - [87] their Honours undertook a detailed analysis of what is comprehended by an absence of reasonable and probable cause noting the forensic difficulties associated with proving a negative. They also recognised that the logical relationship between the question whether the defendant prosecutor acted without reasonable or probable cause, and the quite different question of what will constitute reasonable and probable cause to institute criminal proceedings is such that by eliding the two questions there is a risk of obscuring the importance of the burden of proof and the variety of factual and forensics circumstances in which the question may arise.

44. While on the application for a judgment in the defendant's favour under the UCPR the defendant bears the burden of proving that on the evidence available at the close of the plaintiff's case a judgment for the plaintiff cannot be supported, it is important not to lose sight of the fact that the evidence upon which the plaintiff relies to resist that application must be capable, as a matter of law, of proving on the balance of probabilities that the prosecutor instituted proceedings without reasonable or probable cause.

45. At [58] in A v State of New South Wales the importance of recognising that the inquiry about reasonable and probable cause has both subjective and objective elements was emphasised. Accordingly, in deciding whether the prosecutor did not have reasonable and probable cause for commencing the prosecution (or in this case whether the evidence is capable of supporting that case) the material available to the prosecutor must be assessed in two ways: what did the prosecutor make of it; what should the prosecutor made of it? Their Honours said:

...To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.

46. They went on to emphasise the temporal dimension to an action for malicious prosecution which necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to commence the prosecution not whatever material may later have come to light.

47. In so far as the subjective element is concerned their Honours posed a number of questions:

[70]...Does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion (a "belief") in the mind of the prosecutor? What is the subject-matter of the state of persuasion that is to be considered? Is it a persuasion about the likelihood of a particular outcome of the prosecution (the conviction of the person prosecuted)? Is it a persuasion about what the material considered by the prosecutor reveals ("guilt" or "probable guilt" of the person prosecuted)? Or is it a persuasion about that material's sufficiency to warrant setting the processes of the criminal law in motion? What, if any, weight may be given by the prosecutor to the existence of various checks and balances, like the interposition of committal proceedings and the assignment of particular functions to the Director of Public Prosecutions, that form an integral part of the system of criminal justice?

48. They then answered those questions in the following way:

[71] Those questions should be answered as follows. If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion...

49. They went on to note that where a police officer prosecutes a person on the basis of statements by third parties (or a third party as is the case here given Detective Cosgrove's reliance on the evidence of Munn) there are difficulties in applying a test of reasonable and probable cause which would be satisfied by demonstrating only that the subjective state of the mind of the prosecutors fell short of positive persuasion of guilt. Their Honours reasoned to the conclusion that references to belief in guilt, or more properly, the absence of belief in guilt, will very likely prove distracting where the prosecutor cannot be supposed to know where the truth lies when acting on the statement of others. The relevant question in those circumstances is whether the prosecutor has been shown not to have honestly concluded that that the available material was such as to warrant setting the processes of the criminal law in motion. Unless the prosecutor is shown either not to have honestly formed the view that there was a proper case to prosecute, or to have formed that view on an insufficient basis, the element of absence of reasonable and probably put probable cause is not established.

50. The defendant submitted that there is no evidence at all to support the proposition that Detective Cosgrove did not honestly form the view that there was a case against the plaintiff which warranted or justified prosecution. He submitted that there was an abundance of evidence to support the fact that he held that honest belief. The plaintiff's counsel did not submit that there was any direct evidence of an absence of an honest belief but that, since the decision to charge the plaintiff was not based on a sufficiency of evidence, that supported an inference that he did not in fact have a honest belief that the evidence warranted setting the criminal law in motion.

51. I am not persuaded that there is any force in the plaintiff's submission. Having regard to the weight of the evidence available to Detective Cosgrove at the time of service of the Court Attendance Notice, the inference that he did not have such a belief is simply untenable. For this reason alone the defendant's application for judgment in its favour must succeed. When separate consideration is given to the objective aspect of the allegation of absence of reasonable and probable cause I am compelled to the same conclusion.

52. In so far as the objective aspect is concerned, in A v State of New South Wales their Honours observed at [83] that it is sometimes couched in terms of an "ordinarily prudent and cautious man placed in the position of the accuser" or to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution" or "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty". Of the various expressions that have found voice in the collected authorities and in academic discourse their Honours said that:

[84] None of these propositions (nor any other equivalent proposition which might be formulated to describe the objective aspect of absence of reasonable and probable cause) readily admits of further definition. It is plain that the appeal is to an objective standard of sufficiency. The references to "reasonable" and "reasonably", to "ordinarily prudent and cautious", make that clear.

[85] Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made.

[86] It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made. Lister v Perryman , where a charge was preferred on account of what had been reported to the prosecutor, is a good example of such a case. And as Lord Atkin rightly said in Herniman v Smith :

It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution.

[87] For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning would be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule. The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case.

53. The plaintiff conceded that the body of circumstantial evidence available to police at the time of the service of the Court Attendance Notice, namely contact between the plaintiff and Jamie Young on the day of the robbery; the fact that the cash she had in her till far exceeded the office imposed limit and the fact that the CCTV equipment under her control was not functioning at the time of the alleged robbery, was sufficient to raise a suspicion of her criminal involvement in the theft, but that it was a weak circumstantial evidence case. That much might fairly be said. In fact, were that the only evidence it might well have supported a finding that the prosecutor acted without reasonable or probable cause in laying a charge based upon it. However it was not the only evidence. It is clear beyond question that the mainstay of the case against the plaintiff was the evidence of Munn. While it is equally as clear that Detective Cosgrove had concerns about his reliability as an informant, this was balanced against the fact that he provided police with information that was not in the public domain in 2003 and in 2006 expressed his willingness to give evidence concerning those matters without reward or inducement. Counsel openly conceded the circumstantial evidence case against the plaintiff was "bolstered" by the direct evidence of Munn but maintained the submission that the prosecution of the plaintiff suffered from a fatal deficiency which he was not able to identify. In these circumstances, his submission that there is a sufficiency of evidence to support a finding in the plaintiff's favour that the prosecution was commenced without reasonable or probable cause simply lacks any force with the corollary that the defendant's application for judgment must succeed.

54. Accordingly, the orders I make are as follows:

1. In regard to the action for malicious prosecution in paragraphs 9, 10, 11, 12 and 12C of the fourth amended statement of claim, judgment for the defendant.

2. The plaintiff is to pay the defendant's costs with costs calculated as and from 2 June 2011 to be paid on an indemnity basis.

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