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Supreme Court of New South Wales |
Last Updated: 8 August 2011
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Catchwords:
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TORTS - malicious prosecution and false
imprisonment - malicious criminal proceedings - essentials of cause of action
generally -
termination of proceedings in Plaintiff's favour and innocence -
when proof of Plaintiff's innocence necessary - Plaintiff convicted
by jury -
retrial ordered on appeal - Director of Public Prosecutions decides to proceed
no further on the charges - whether the
decision amounts to a nolle prosequi -
effect of entry of a nolle prosequi - need for the Plaintiff to prove innocence
on those
counts.
CRIMINAL LAW - procedure - indictments - status where appeal court quashes conviction and orders re-trial - nolle prosequi - when may be entered |
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Legislation Cited:
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Crimes Act 1900
Criminal Appeal Act 1912 Criminal Code 1924 (Tasmania) Director of Public Prosecutions Act 1986 |
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Cases Cited:
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A v State of New South Wales [2007] HCA 10; (2007) 230
CLR 500
Abrath v North Eastern Railway Co. (1883) 11 QBD 440 Balbhaddar Singh v Badry Sah (PC No. 66 of 1924). Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527 Davis v Gell [1924] HCA 56; (1994) 35 CLR 275 Director of Public Prosecutions South Australia v B [1998] HCA 45; (1998) 194 CLR 566 Mann v Jacombe (1961) 78 WN (NSW) 635 Miazga v Kvello Estate [2009] SCC 51; [2009] 3 SCR 339 Noye v Robbins and Crimmins [2007] WASC 98 Noye v Robbins and Crimmins [2010] WASCA 83 R v Catt (1993) 68 A Crim R 189 R v GKA (1998) 99 A Crim R 491 R v Howard (1992) 29 NSWLR 242 R v Janceski [2005] NSWCCA 281; [2005] 64 NSWLR 10 R v Murrell [2001] NSWCCA 179; (2001) 123 A Crim R 54 R v Nicholas (1989) 45 A Crim R 299 R v Taylor [2003] NSWCCA 194 R v Wylie, Howe and McGuire (1919) 83 JP 295 Regina v Catt [2005] NSWCCA 279 Skrijel v Mengler [2003] VSC 270 The Queen v Economou (1989) 51 SASR 421; Question of Law Reserved on Acquittal [1996] SASC 5679; (1996) 66 SASR 450 |
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Texts Cited:
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Blackstone's Commentaries, 1st ed, (1769), Vol
IV
Fleming, The Law of Torts, 9th Edition, (1998) Law Book Company, North Ryde G.P. Donovan: "The Effect Of A Nolle Prosequi In Relation To The Action From Malicious Prosecution" (1938-39) 12 ALJ 457 |
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Representation
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- Solicitors:
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Publication Restriction:
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A. With respect to each of the counts 1, 2, 5, 6 and 7 for which the plaintiff was tried:
i. 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?
B. With respect to count 9 for which the plaintiff was tried:
i. To the extent that plaintiff's the claim for malicious prosecution is based upon this count does the plaintiff need to prove her innocence of the charge?
Background
Count 1: [Rock Incident]:
On 2 May 1988 at Taree maliciously did wound Barry Catt (s.35 Crimes Act 1900).
Count 2: [False Evidence About The Rock Incident]:
On 3 July 1989 at Taree in the Local Court before Mr G.P. O'Keefe, Magistrate, on an occasion when truth of the same was material, did knowingly and willingly falsely swear in substance, as follows, that is to say, that she, Roseanne Catt, at no time struck Barry Catt with a rock (s.327 Crimes Act 1900).
Count 3: [Swan's Crossing Incident]:
Between 2 March and 30 March 1989 at Swans Crossing maliciously did wound Barry Catt (s.35 Crimes Act 1900).
Count 4: [Cricket Bat Incident]:
On 5 May 1989 at Taree did assault Barry Catt thereby occasioning to him actual bodily harm (s.59 Crimes Act 1900).
Count 5: [Drug Incident]:
Between 1 May and 31 July 1989 at Taree, maliciously did cause to be taken by Barry Catt a noxious thing, namely, lithium, and thereby did endanger the life of Barry Catt (s.39 Crimes Act 1900).
Count 6: [James Morris - RSL Club]:
On 28 July 1989 at Taree did solicit James Morris to murder Barry Catt (s.26 Crimes Act 1900).
Count 7: [Vernon Taylor-1 Cornwall Street, Taree]:
Between 15 July and 16 August 1989 at Taree did solicit Vernon Taylor to murder Barry Catt (s.26 Crimes Act 1900).
Count 9: [Pistol]:
On or about 24 August 1989 at Taree did have in her possession a pistol, namely, a Hopkins and Allen .32 calibre revolver, she then not being the holder of a licence for such pistol (s.25(l) Firearms and Dangerous Weapons Act 1973).
On or about 24 June 1989 at Taree did encourage Leslie O'Brien to murder Barry Catt (s.26 Crimes Act 1900).
On that matter the Magistrate did not commit the Plaintiff to stand her trial. Subsequently, however, the Director of Public Prosecutions presented an ex officio Indictment in relation to that count which became Count 8 in the indictment.
[232] I have come to the conclusion that the appeal in relation to counts 3 and 4 should be dismissed and the appeals in relation to counts 1, 2, 5, 6, 7 and 9 upheld.
[233] With respect to count 9 (unlicensed pistol) the sentence has already been served and an order for a new trial would not be appropriate. A verdict of acquittal should be entered.
[234] However, with respect to the other matters the charges are serious and although I am satisfied the convictions should be quashed it is a matter for the Director of Public Prosecutions, and not this Court, to determine whether a new trial should take place. Although there is undoubtedly significant reasons (sic) why a new trial may be appropriate, not the least of which is to ensure that when significant charges are brought they are determined according to law, this must be balanced with the fact that fresh trials would occasion significant expense and it would be unlikely that any further term of imprisonment would be required to be served, even if convictions were entered on all charges. The appellant was released on bail on 6 August 2001, just over four months before her release on parole was due on 10 December 2001.
[235] In the circumstances, the appellant should remain on bail pending the decision by the Director of Public Prosecutions as to whether to proceed with any fresh trial.
[236] I propose the following orders:
1. Uphold the appeal in relation to counts 1, 2, 5, 6, 7 and 9 and quash each conviction.
2. Enter a verdict of acquittal on count 9.
3. Order that there be a new trial in relation to counts 1, 2, 5, 6 and 7.
4. Dismiss the appeal in relation to counts 3 and 4.
5. The appellant's bail is to continue.
6. Reserve liberty to apply.
RE: Regina v Yourself
Offences: Malicious wounding; Perjury; Attempt to cause noxious thing to be taken; Solicit to murder (x2)
District Court No: 02/12/1052
I wish to advise that after careful consideration of this case the Director of Public Prosecutions has made the decision to proceed no further with the above charges.
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,
(b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and
(c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution.
(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 issues
(1) Whether the forwarding of the Particulars to the Court could be regarded as the entry of a nolle prosequi ?
(2) If the forwarding of the Particulars amounted to a nolle prosequi , is the result that the Plaintiff must prove her innocence in relation to each count in order to succeed?
In relation to the second question the following issue was argued:
(3) In circumstances where the Court of Criminal Appeal acquitted the Plaintiff in relation to count 9 for the reasons it gave, is it necessary for the Plaintiff to prove her innocence to succeed in relation to this count?
(1) The effect of the forwarding of the Particulars
Prima facie therefore where an appeal against conviction succeeds the court is required not only to quash the conviction but to direct a judgment and verdict of acquittal to be entered, thereby terminating all proceedings against the appellant on the indictment and arming him with a clear plea of autrefois acquit to any further proceedings in respect of the same subject-matter. Of course to the extent that any further indictment may allege new issues, not the subject of the first indictment and in respect of which issues the appellant has not hitherto been in jeopardy, that is a perfectly acceptable course (see, for example, Gerakiteys [1984] HCA 8; (1984) 153 CLR 317; 12 A Crim R 54) and not one in respect of which the above plea could be maintained. However, if the court sees fit to exercise certain other powers it has, including that of ordering a venire de novo or a new trial, its order will quash the original conviction and will refrain from directing a judgment and verdict of acquittal which would obviously be inconsistent with such an order. Consequential orders under s 404(2) will provide a mechanism for further proceedings upon the only process then before the court, that is the subsisting indictment. Because that is the only document identifying the issues before the court, it is by reference to that document that the court would indicate the issues in respect of which the judgment and verdict of the court should stand, be set aside or remitted to another panel of jurors for retrial. In the present case the verdict of not guilty on count 2 (forgery) was not challenged and had to stand. The court could have dismissed the appeal in respect of one of the remaining counts or upheld it in respect of both, quashing them and directing a verdict of acquittal on one and ordering a retrial on the other or, as was the case here, directing that both remaining counts should be retried. The order conveniently indicated, by reference to the existing indictment, the issues which rather than being concluded by virtue of verdict and judgment and giving rise accordingly to a plea of autrefois acquit should be re-submitted to a court of trial. It in no way in my view prevented the Crown from exercising its non-examinable prerogative power ( Radford [1951] Tas SR 1; Barton [1980] HCA 48; (1980) 147 CLR 75) to enter a nolle prosequi on that indictment and to present the accused on a further indictment drafting the issues in a different form and including, where appropriate, any new issues. ( emphasis added )
"When judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused. ... But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby."
( Blackstone's Commentaries (1st ed, 1769), Vol IV, p 386), also Chitty and Russell.
This brief survey of the powers and practice of courts of criminal appeal indicates to me that though ordinarily the court will either affirm or substitute the verdict on the record, thereby concluding all issues raised on the indictment upon which the accused took his trial, where the court orders a further trial by virtue of a power to order either a new trial or a venire de novo the verdict on the record of the court of trial will be set aside and the issues raised by the indictment will remain justiciable. It is a mere matter of mechanics whether the new trial proceeds on the same indictment or upon some fresh indictment substituted by an authorised officer of the Crown. In this regard the situation is essentially the same as that contemplated by the Jury Act 1899 (Tas), s 49, where the first trial results in a disagreement or is otherwise aborted. It remains a proper matter for the discretion of a Crown law officer whether to proceed to a further trial at all, notwithstanding the apparently mandatory order for a new trial, and equally a matter of discretion whether or not to proceed with the count charged or some other one upon which the appellant could have been convicted on the first indictment. One can easily imagine cases where, despite an order for a new trial on an indictment alleging murder, the Crown may think it proper to proceed only with an allegation of manslaughter. ( emphasis added )
When the language of s 7(2)(b) is considered in the context of the whole section, and is compared with that of s 7(2)(a), it can be seen that it is sufficiently wide to cover the function of entering a nolle prosequi upon an indictment that has already been prescribed. It is not limited to that function, but that is included. It would also include giving such a direction for the purpose of clearing the way for proceedings on a different charge. Accordingly, we accept the submission that the Director had power, in the present case, to direct that no further proceedings be taken against Morgan upon the indictment presented on 2 October 1990, and that such a direction would have the same effect as the entering by the Attorney-General of a nolle prosequi . The question is whether such a direction was given.
The power to direct a nolle prosequi is the same as one power referred to in ss 7(2)(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).
(2) The effect of entering a nolle prosequi
In Steward v. Gromett , which is a landmark in the development of the action, the principle was clearly established - obviously on the broadest ground of inherent justice - that, where a judicial determination of innocence was impossible by reason of the form of proceeding, the plaintiff was not bound to produce such a termination. It follows necessarily from the principles adverted to that a nolle prosequi entered by the prosecuting authority on its own responsibility and discretion creates a position in which an accused person, afterwards plaintiff in an action for malicious prosecution, may properly say the proceeding was not capable of a complete termination in his favour by way of acquittal. But though so far absolved, it does not follow that the termination by way of nolle prosequi in any way establishes innocence. "The effect of a nolle prosequi when obtained" ( Chitty's Criminal Law , vol. i., p. 480) "is to put the defendant without day, but it does not at all operate as an acquittal." (And see R. v. Mitchell ) Its evidentiary effect depends on other considerations, to which I shall later advert.
Acquittal connotes (a) termination of the proceedings and (b) innocence of the accused. Nolle prosequi connotes the first only. This effect it must have on the civil action. But innocence in that case still remains to be proved in order to maintain the action and cannot be assumed. This is strongly exemplified in Bank of New South Wales v. Piper .
I agree with the other members of the Court in thinking that in an action for malicious prosecution the plaintiff must prove his innocence, and that proof that a nolle prosequi was entered on his trial does not entitle the jury to assume that the plaintiff was innocent.
[The Plaintiff] may show, for instance, that the proceedings terminated in his favour by a nolle prosequi or by the ignoramus of a grand jury or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the Court or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case.
( Ignoramus of a grand jury is the present equivalent of the refusal of the Attorney-General or the DPP to find a bill of indictment.)
At the trial of the action under consideration in this appeal the plaintiff insisted that he was entitled to lead evidence to establish affirmatively that he was innocent of the conspiracy with which he had been charged and for that purpose to prove many matters, such as what he had been informed or believed and what circumstances or alleged circumstances actuated his conduct, all of which would have been inadmissible if the issue of his guilt or innocence were out of the case. The defendant objected, and maintained that the question of the actual guilt or innocence of the plaintiff formed no part of the issues before the jury. The trial judge, on the authority of the judgments given in this court in Davis v. Gell , admitted the evidence. There can, we think, be no doubt that, if this course was erroneous, then, having regard to the nature of the evidence so admitted, the defendant is entitled to a new trial. The contention that no substantial wrong or miscarriage would be occasioned by the error appears to us to be quite untenable.
The first question for consideration, therefore, is whether the plaintiff's guilt or innocence of the charge was in issue. The affirmative of this question is supported on the part of the plaintiff on the ground that his innocence is an element essential to his cause of action and also a matter going to damages. These are, of course, separate reasons for throwing open before the jury in the civil proceeding the question with which the criminal proceeding was concerned. We shall deal first with the question whether the plaintiff's guilt or innocence is an issue going to the cause of action.
After an elaborate examination of the decided cases by Isaacs J. and by Starke J., those learned judges arrived at conclusions which appear to us to be substantially the same and in which, as we understand his judgment, Gavan Duffy J. concurred. Their Honours considered that in every action of malicious prosecution the plaintiff must show that the charge was "unfounded," and that meant that he must show his innocence. But if he had been tried and acquitted, this would establish his innocence for the purpose of an action for malicious prosecution. It would also show that the criminal proceedings had terminated and thus satisfy another requirement indispensable to the maintenance of the civil action. That requirement might be satisfied by other forms of termination short of acquittal, but they would not establish innocence, at all events conclusively, Starke J. stated the position as follows:- "He may show, for instance, that the proceedings terminated in his favour by a nolle prosequi , or by the ignoramus of a grand jury, or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the court, or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case. It is unnecessary, and indeed undesirable, in this case, to discuss what (if any) presumptions in favour of innocence, or other evidence would satisfy the burden".
In expressing the view that the dismissal by a magistrate of an information for an indictable offence or the ignoring of a bill of indictment by a grand jury was insufficient to exclude or conclude the question of the plaintiff's guilt or innocence of the charge, the court went beyond the particular case which, as we have already said, was one where after the plaintiff had been put on his trial a nolle prosequi was entered on behalf of the Crown. Now the question whether a nolle prosequi is a sufficient termination of the criminal proceedings to enable the accused to maintain an action of malicious prosecution, assuming that he can establish the other elements in the cause of action, is one which has never been settled by English authority. A nolle prosequi does no more than bring the trial to an end. The accused may again be indicted or fresh process may be awarded in the same indictment and the prisoner again put on his trial.
...
The development by an action on the case in the nature of conspiracy of the remedy for malicious prosecution was perhaps somewhat late and relatively slow. The elements of the cause of action did not become definite and certain before the nineteenth century and it is evident that there has survived to the present time a difficulty in the application of principles, otherwise settled, to the special case of proceedings brought to an end by nolle prosequi . The view adopted in Davis v. Gell covered that difficulty and solved it by leaving the question of innocence or guilt open for inquiry in the civil proceedings. But the opinion expressed by the members of the court that proceedings which ended in favour of the accused by a refusal of the magistrates to commit fell under the same rule was unnecessary to the decision, and, in view of the unreported case in the Privy Council, Balbhaddar Singh v. Badri Sah (No. 66 of 1924), it cannot now be followed.
As Isaacs J. explains in Davis v. Gell , Bowen L.J. did not mean that innocence must be proved and acquittal also. He meant that a decision in favour of the accused must be proved, which decision thus established innocence. When he said that the plaintiff must prove first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made, he used words which cover discharge by a magistrate, the ignoring of a bill of indictment and a judgment of acquittal after a verdict of not guilty. He appears to us to have meant no more than is meant by the statement of Byles J. in Basebe v. Matthews which we have quoted.
...
Unless the termination of the criminal proceedings has been by nolle prosequi , a case which is covered by the decision of Davis v. Gell , the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff. The plaintiff must prove that the prosecution terminated in his favour. He must prove that there was no reasonable and probable cause for the prosecution. But he need not prove that in truth he was innocent of the charge, and it is not open to the defendant to attempt to prove as an answer to the action that in truth he was guilty, notwithstanding the termination of the criminal proceedings in his favour.
...
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.
The present case is not one where the proceedings were terminated by the entry of a nolle prosequi . They ended by the refusal of the Attorney-General to file an indictment. Under the law of New South Wales there is no grand jury, and the Attorney-General discharges a duty analogous to or replacing that which, under the common law, was performed by a grand jury. See sec. 5 of 9 Geo. IV. c. 83; Crimes Act 1900, sec. 572, and Justices Act 1902-1931 N.S.W., secs. 39, 41 (6) and 42, and R. v. McKay , to which Rich J. has referred us. When an accused person is committed for trial, it is for the Attorney-General to consider whether the accused should be put on his trial and for what precise offence, and this he does by filing or refusing to file an indictment. This is an entirely different function from that of entering a nolle prosequi upon an indictment after it has been filed, which does no more than non. pros. the indictment. The decision in Davis v. Gell was upon the effect of a termination by the latter process and both on principle and upon the authority of the decision of the Privy Council in Balbhaddar Singh v. Badri Sah it cannot be extended further. ( emphasis added )
This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause.
To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was:
(1) initiated by the defendant;
(2) terminated in favour of the plaintiff;
(3) undertaken without reasonable and probable cause; and
(4) motivated by malice or a primary purpose other than that of carrying the law into effect.
The defendant, Jacombe, who is being sued by the plaintiff, Mann, for alleged injury suffered through Jacombe's issuing criminal proceedings against him, demurred to each of the four counts of the plaintiff's declaration. He submitted that the declaration does not allege the termination of the proceedings referred to in each count in the plaintiff's favour, and that the entry of a nolle prosequi is not a termination of proceedings in favour of the defendant (Mann) in the criminal case.
All that need be said on the point is to refer to the decision in 1891 of the Full Court of New South Wales in Gilchrist v. Gardner (1891), 12 L.R. (N.S.W.) 184, from which it appears that the balance of the decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution. See also Commonwealth Life Assurance Society Ltd. v. Smith (1938), 59 G.L.R. 527; and cf. Davis v. Gell [1924] HCA 56; (1924), 35 C.L.R. 275. In the result, the objection to the declaration by the defendant fails in respect of each count.
Even the mere discontinuance of a prosecution or the entry of a nolle prosequi after an indictment had once been filed may now, despite some earlier doubts, be regarded as in every way sufficient.
[224] It seems to me, however, that the law in this country is not so simple. In Davis v Gell a majority of the High Court held that a nolle prosequi was not enough to establish that the proceeding had terminated favourably to the plaintiff. The plaintiff had also to prove that he was innocent of the offence with which he was charged. Flemming (sic) says that the decision in Davis v Gell may safely be discounted in light of Commonwealth Life Assurance v Smith , and that the decision in Mann v Jacombe establishes that the entry of a nolle prosequi after an indictment has been filed is in every way sufficient. I do not see how that can be correct.
[225] Davis v Gell was a case in which a nolle prosequi was entered after the plaintiff had been committed to stand trial and had pleaded not guilty to the indictment. The High Court held by majority that in an action for malicious prosecution the plaintiff had to prove his innocence. The nolle prosequi established that the proceedings were terminated in his favour but that did not establish his innocence.
[226] Commonwealth Life Assurance v Smith was not concerned with a nolle prosequi . The Court was concerned with the attorney general's refusal to file an indictment, and the majority held that:
" Unless the termination of the criminal proceedings has been by nolle prosequi, a case which is covered by Davis v Gell , the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff." (My Emphasis).
As I read that decision it expressly preserves the effect of Davis v Gell in its application to cases of nolle prosequi .
[227] That being so, I do not understand how any decision other than another decision of the High Court could be thought to alter the position. Whatever the depth of learning in the decision in Mann v Jacombe may have been it could not have the effect of altering a decision of the High Court. Until the High Court says otherwise, the law in relation to nolle prosequi remains as in Davis v Gell .
[228] Moreover, it does not appear to me that the court in Mann v Jacombe did purport to decide anything contrary to Davis v Gell . Mann v Jacombe was about pre Judicature Act pleading in New South Wales. The point at issue was whether the plaintiff against whom the criminal proceeding was non pros had to plead innocence. It was held that he did not. The court said only that:
"...it appears that the balance of decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution."
[229] Perhaps Mann v Jacombe says something inferentially about what the plaintiff would later have to prove at trial. But I do not think it has to be taken that way. The decision in Davis v Gell was that it was necessary for the plaintiff to prove his innocence, not that he had to plead it, and as Starke J noted in Davis v Gell that had long been the law:
"But it is 'not necessary in an action for malicious prosecution that the plaintiff should allege or prove such an acquittal, for it may be brought under circumstances which preclude the possibility of such and acquittal' (Selwyn's Nisi Prius , 13th ed, Vol II, p105). He may show, for instance; that the proceedings terminated in his favour by a nolle prosequi or by the ignoramus of a grand jury or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the Court or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case."
I see no necessary inconsistency as between that and what was held in Mann v Jacombe .
[230] In the course of final addresses the first and third defendants provided me with references to a number of American authorities on the question of nolle prosequi in the law relating to malicious prosecution and it was submitted on the basis of those authorities that, despite the decision in Davis v Gell , a nolle prosequi is only to be regarded as a favourable termination of the criminal proceeding if the reasons stated for the nolle are "consistent with the innocence of the accused" rather than for "procedural or technical defect". For the reasons already given I do not consider that it is open to me to adopt that course. I regard myself as bound by Davis v Gell .
[238] What, then, is the significance in entering a nolle prosequi for an accused person who subsequently brings an action for malicious prosecution against the person or persons who originally instituted or instigated the charges? Plainly, such an accused person is powerless to achieve a more favourable outcome. He or she cannot compel, even if they wished to do so, the trial to proceed. Still less, can a judgment, after a verdict by a jury or by a Judge alone, be entered in the hope that the accused would be vindicated by an acquittal. Such a person can do nothing more than accept the termination of the proceedings as a demonstration that the person or authority who originally had the responsibility of proving the charge has decided not to attempt that task.
[239] Both defendants in the present action originally submitted that the entry of the nolle prosequi on the indictments presented against Noye did not constitute a favourable termination of the proceedings and that, consequently, these actions must fail because of the inability of Noye to establish that those proceedings terminated in his favour. However, counsel for Inspector Robbins abandoned that point in final submissions (see written submissions par 55). For this proposition the defendants had relied upon Davis v Gell (supra); and Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527; and the very recent discussion of those decisions by Nettle J in Skrijel v Mengler (supra) which distinguished the later decision, apparently to contrary effect, of the Supreme Court of New South Wales in Mann v Jacombe (supra).
[240] In Davis v Gell (supra), the court held that in an action for malicious prosecution the plaintiff must prove his innocence. The fact that a nolle prosequi was entered at his trial, although it establishes that the proceedings terminated in the plaintiff's favour, does not establish the plaintiff's innocence, whereas a verdict of acquittal does establish innocence as well as demonstrate that the proceedings terminated in favour of the accused. In Commonwealth Life Assurance Society Ltd v Smith (supra), an action for malicious prosecution was brought following a charge of conspiracy made against the plaintiff in respect of which the Attorney General, after the plaintiff had been committed for trial, had declined to file any indictment. There was no nolle prosequi because there had never been an indictment. At 543, Rich, Dixon, Evatt and McTiernan JJ said:
Except in the case of a nolle prosequi covered by the decision in Davis v Gell [supra], 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.
and, further, at 545:
For the reasons already given, the basis of the action puts out of consideration any question of actual guilt. The failure of the proceedings brought by the defendant, the absence of any reasonable cause and malice are the grounds.
and, at 544:
In other words, for the purpose of malicious prosecution, the law should consistently treat the question as disposed of in the criminal proceedings, the propriety of the conclusion of which ought not to be canvassed.
This has left a controversy, and a conflict in subsequent decisions below the level of the High Court, about whether or not the filing of a nolle prosequi is a sufficient basis for maintaining an action for malicious prosecution and, if so, whether the plaintiff must additionally prove that he is innocent of the charges laid. The older authorities, and the controversy as it then stood, were discussed in detail by a helpful article by Donovan G P, " The Effect of a Nolle Prosequi in Relation to the Action for Malicious Prosecutio n" (1939) 12 ALJ 457; but there have been significant other decisions since then.
[241] I consider that Davis v Gell (supra) demonstrates that, in any action for malicious prosecution, the plaintiff must establish the falsity of the charge complained of and must do so by showing his innocence. In cases where the plaintiff was acquitted after trial (whether on facts or because of any technical defect or inadequacy in the indictment or the charge), that acquittal is to be treated as the establishment of innocence. However, without such an acquittal, because a nolle prosequi was filed, that is not conclusive evidence of innocence and it is still for the plaintiff to prove that by other means in the subsequent civil action. By contrast, in Commonwealth Life Assurance Society Ltd v Smith (supra), the court held that it was not necessary for the plaintiff to prove innocence of the charges brought against him or her. Nevertheless, it did not overrule or reject the decision in Davis v Gell (supra) that in a case involving the filing of a nolle prosequi it remained for the plaintiff to establish his innocence by some additional means, leaving the issue of guilt or innocence open for inquiry in an action for malicious prosecution brought after the filing of a nolle prosequi . An obvious point of difficulty emerging from Smith's case (supra) is that if the entry of a nolle prosequi is an insufficient termination of proceedings for the purposes of an action for malicious prosecution, then to allow affirmative proof of innocence in the civil action to supply that deficiency is to proceed upon the assumption that the rule requiring favourable termination of criminal proceedings requires proof of the plaintiff's innocence - a proposition inconsistent with the rejection of the relevance of guilt or innocence of the plaintiff in Smith's case (supra) itself. The inconsistency becomes apparent when one considers the previously long accepted view that the importance of the termination in the plaintiff's favour is not that he or she is innocent but that he or she has not been convicted: see Salmon and Heuston on the Law of Torts , (2000) 20th ed (1992) at 412; Clerk and Lindsell on Torts, 18th ed [16]-[19].
[242] In Smith's case (supra) the court referred to the old decision of Goddard v Smith (1704) 6 Mod Rep 261; (1704) 87 ER 1007, and concluded that it did not support the proposition that an action for malicious prosecution could not be brought following a nolle prosequi ; and was some authority for the proposition that the effect of the nolle prosequi may not be to discharge any further prosecution upon an indictment, but simply to put off the defendant sine die, with the possibility that a new process might issue upon an offence. From this it can be concluded that the entry of a nolle prosequi constitutes as much of a favourable termination as, from their nature, the criminal proceedings were capable of producing in the events which happened; and that it terminates the immediate indictment and must therefore be regarded as putting an end to that particular prosecution without foreclosing the possibility of another. This is because the procedure adopted by the prosecution precludes the possibility of a judicial determination, so that it would be unjust that the plaintiff should be prevented from bringing an action for malicious prosecution - see Steward v Gromett (1859) 141 ER 788, cited in Davis v Gell (supra) by Isaacs ACJ at 286 and, by observations to similar effect, by Starke J at 297.
[243] Furthermore, the law treats the termination of criminal proceedings because of a defect in the indictment or because of want of jurisdiction of the court as sufficient to justify an action for malicious prosecution even though such cases will usually be as, if not more, equivocal of the innocence of the accused than a discharge after a nolle prosequi . If, as Smith' s case (supra) has held, in all instances but discharge following a nolle prosequi , in the subsequent action for malicious prosecution the actual guilt or innocence of the plaintiff is an irrelevant issue, that would appear to be because the action for malicious prosecution requires the plaintiff to establish that the original prosecutor did not have reasonable and probable cause for bringing the charge. Conviction of the person charged after trial (not set aside on appeal) will, of necessity, render proof of the absence of reasonable and probable cause impossible. However, the action for malicious prosecution will still lie following the discharge of the accused after a successful appeal following a conviction at trial because, in that case, the proceedings have terminated in the plaintiff's favour. Although, in such a situation, it might be expected to be difficult to establish, as a fact, the absence of probable and reasonable cause for laying the charge.
[244] In Mann v Jacombe (supra), Evatt CJ, Herron and Sugerman JJ decided that the entry of a nolle prosequi constituted sufficient favourable termination of proceedings to maintain an action for malicious prosecution. The case was decided upon a demurrer which cited, and purported to apply, both the decisions in Smith's case (supra) and Davis v Gell (supra). Similarly, in Earnshaw v Loy (No 1) [1959] VicRp 43; [1959] VR 248 at 249, Sholl J said, of Smith's case:
That case and other cases now appear to establish clearly that, except where there is a nolle prosequi, the favourable determination of the criminal proceedings cannot be controverted in the subsequent civil action, at any rate as a separate issue.
[245] In Skrijel v Mengler (supra) at [227], Nettle J referred to the express observation of the decision in Davis v Gell in Mann v Jacombe and then said:
Whatever the depth of learning in the decision in Mann v Jacombe may have been it could not have the effect of altering a decision of the High Court. Until the High Court says otherwise, the law in relation to nolle prosequi remains as in Davis v Gell. [Citations omitted]
Nettle J then went on to distinguish Mann v Jacombe as being concerned with the niceties of pre- Judicature Act pleading in New South Wales, where it was only necessary for the plaintiff to prove his innocence at trial and not to plead it. His Honour then referred to American authorities which had held that a nolle prosequi should only be regarded as a favourable termination of the criminal proceedings if the reasons given for the nolle were consistent with the innocence of the accused, rather than for a procedural or technical defect. Her (sic) Honour did not adopt that approach.
[246] While, for reasons of principle, I am disposed to favour the approach taken by the Full Court of the Supreme Court of New South Wales in Mann v Jacombe (supra), I am mindful of the need to conform strictly with the binding authority of the High Court and, therefore, with Davis v Gell and Smith's case (supra), to decide that proof of the filing of a nolle prosequi is insufficient, by itself, to establish the termination of the criminal proceedings in the plaintiff's favour. Therefore, I need to consider whether or not there is other evidence which, taken in combination with the filing of the nolle prosequi , proves, on the balance of probabilities, the innocence of the plaintiff which, otherwise would be assumed from a verdict of acquittal.
Count 9
Conclusion
A. Yes.
B. No.
**********
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