Citation: Duke v State of New South Wales & Ors [2005] NSWSC 632
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 June 2005
Judge(s): Hidden J
Background
The plaintiff was arrested in February 1990 following a police search of his Bathurst home. He was charged with supplying heroin, committed for trial, convicted, and sentenced to imprisonment. He consistently maintained the charge was based on fabricated evidence.
In 1996, during the Police Royal Commission, two of the officers involved admitted the evidence had been fabricated. The Court of Criminal Appeal subsequently quashed the plaintiff's conviction in 1999 and entered a verdict of acquittal.
The plaintiff then pursued civil proceedings against the State of New South Wales and several police officers. The matter before Hidden J was a motion for leave to file an amended statement of claim and to join an additional police officer as a defendant. The State opposed the motion on the basis that the amended pleadings disclosed no tenable cause of action.
Legal Issues
- Whether the witness immunity principle (which protects witnesses from civil liability arising from their evidence) barred the proposed claims in negligence and misfeasance in public office against the police officers
- Whether the fabrication of evidence by police falls outside the scope of witness immunity
- Whether the claims in false imprisonment and malicious prosecution were properly pleaded
- Whether the police officers were appropriately identified as "prosecutors" for the purposes of a malicious prosecution claim, given that the formal prosecution was conducted by police and the Director of Public Prosecutions
Decision
Witness immunity and negligence/misfeasance claims
The State argued that the pleadings in negligence and misfeasance in public office were barred by witness immunity, because the underlying complaint was that the officers had given false evidence. Hidden J examined the leading authorities on witness immunity, including the High Court's decision in Cabassi v Vila and the House of Lords' decision in Darker v Chief Constable of the West Midlands Police. His Honour accepted that witness immunity is a well-established principle of public policy protecting witnesses from civil action based on what they said or did in the course of giving evidence.
However, the immunity does not extend to conduct that occurs outside the witness box and before any judicial proceedings begin. Darker confirmed that fabricating evidence before a trial falls outside the protection of witness immunity. On that basis, His Honour held that the fabrication allegations in this case were capable of supporting tenable causes of action in both negligence and misfeasance in public office, and were not defeated by the immunity principle.
Misfeasance in public office
His Honour noted that misfeasance in public office requires either an act done with intent to injure the plaintiff, or an act knowingly beyond power and likely to harm the plaintiff. The allegation that officers deliberately fabricated evidence and planted heroin was, on its face, capable of satisfying those requirements.
False imprisonment and malicious prosecution
The claims in false imprisonment and malicious prosecution were considered separately. His Honour identified pleading issues, particularly around the malicious prosecution claim, including the need for clearer identification of which officers were properly characterised as "prosecutors" and more specific pleading of absence of reasonable and probable cause and malice. The point that more than one person might constitute a "prosecutor" was noted as arguable but not finally resolved.
Orders Made
- Leave granted to the plaintiff to file an amended statement of claim, to be filed in its final form within 28 days.
- Leave granted to join the proposed sixth defendant, unless the State conceded vicarious liability in respect of that officer.
- Liberty reserved to the parties to apply.
- Costs argument reserved.
Key Takeaways
- Witness immunity protects individuals from civil liability for what they say as witnesses in judicial proceedings, but it does not protect conduct that precedes the proceedings, such as the fabrication or planting of evidence during a police investigation.
- The House of Lords' decision in Darker v Chief Constable of the West Midlands Police was applied to confirm that fabricating evidence prior to trial falls outside the scope of witness immunity, leaving room for claims in both negligence and misfeasance in public office to proceed.
- A claim in misfeasance in public office requires pleading either deliberate harm or conduct that is knowingly beyond power and likely to cause harm. Allegations of deliberately fabricated evidence are capable, on their face, of meeting that threshold.
- For malicious prosecution claims involving police-fabricated charges, the question of who qualifies as the "prosecutor" is not automatically answered by the fact that police or the DPP formally brought the proceedings. Multiple officers may potentially be treated as prosecutors if each played an instrumental role in initiating or sustaining the prosecution.
- Under the Law Reform (Vicarious Liability) Act 1983, the State's concession of vicarious liability for particular officers affected which officers could properly be joined as individual defendants, with joinder remaining appropriate only where vicarious liability was disputed.
Legislation and Cases Referenced
Legislation
- Law Reform (Vicarious Liability) Act 1983 (NSW), ss 9B(3), 9D(1)(b)
Cases
- Cabassi v Vila (1940) 64 CLR 130
- Watson v M'Ewan [1905] AC 480
- R v Beydoun (1990) 22 NSWLR 256
- Roy v Prior [1971] AC 470
- Darker & Ors v Chief Constable of the West Midlands Police [2001] 1 AC 435
- Marrinan v Vibart [1963] 1 QB 528
- Cran v State of New South Wales [2004] NSWCA 92
- State of New South Wales v Knight [2002] NSWCA 392
- Letang v Cooper [1965] 1 QB 232
- Williams v Milotin (1957) 97 CLR 465
- Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1
- Davis v Gell (1924) 35 CLR 275
- R v Duke [1999] NSWCCA 281