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Supreme Court 9 October 2006

LANDINI v. STATE OF NSW & ORS

[2006] NSWSC 1054

DrugsFirearms & weaponsPublic order & justice offences
MALICIOUS PROSECUTION VICARIOUS LIABILITY OF THE CROWN

Citation: Landini v State of NSW & Ors [2006] NSWSC 1054
Court: Supreme Court of New South Wales, Common Law Division
Date: 9 October 2006
Judge(s): Hall J

Background

The plaintiff was convicted on two separate sets of drug-related criminal charges in the early 1980s. The first charge concerned supply of heroin, resulting in a 15-year sentence. The second involved conspiracy to supply heroin and possession of an unlicensed pistol, resulting in a 16-year sentence. Both convictions were quashed by the New South Wales Court of Criminal Appeal on 2 November 2001.

The plaintiff commenced proceedings in the Supreme Court in 2002, alleging malicious prosecution by officers from the NSW Police and a joint taskforce established with the Australian Federal Police. His central allegation was that officers had deliberately fabricated evidence and committed perjury to secure his convictions, when there was no legitimate evidence of guilt.

By the time of this judgment, the hearing was already underway. The plaintiff sought leave to further amend his pleadings, moving from a fourth to a proposed fifth further amended statement of claim. The application consumed seven hearing days and was opposed by multiple defendants, including the State of New South Wales, the Commonwealth of Australia, and two named AFP officers.

  • Whether the plaintiff should be granted leave to amend his pleadings, at a late stage in proceedings, to include allegations of fabrication of evidence and the giving of false evidence at committal and trial
  • Whether the proposed amendments were sufficiently particular, especially references to an "agreed script"
  • Whether allegations of an unlawful agreement among officers were relevant to the elements of malicious prosecution, specifically the absence of reasonable and probable cause and malice
  • Whether the Crown could be vicariously liable for the alleged conduct of police officers under the Law Reform (Vicarious Liability) Act 1983

Decision

Hall J granted the plaintiff conditional leave to amend. The court accepted that the proposed amendments relating to fabrication of evidence and the giving of false evidence at committal and trial were sufficiently connected to the existing pleaded case to warrant leave. The general proposition that amendments should be allowed where necessary to determine the real questions in dispute, subject to any injustice to the other parties, was applied consistently with the established approach in Queensland v J L Holdings Pty Limited.

The court found that allegations of an unlawful agreement between officers were legally relevant to the elements of malicious prosecution. In particular, such allegations bore on whether the defendants had reasonable and probable cause to institute proceedings and on whether malice could be established. These were not merely collateral matters but went to the heart of the tort.

On the question of vicarious liability, the court considered the position of the Crown in respect of officers alleged to have fabricated evidence and given false testimony. The analysis engaged the Law Reform (Vicarious Liability) Act 1983 and relevant authorities, including Darker v Chief Constable of the West Midlands and Cabassi v Vila.

However, leave was granted on a conditional basis. The court required the plaintiff to provide a further draft addressing the use of the term "agreed script" in several paragraphs of the proposed pleading. If the expression referred to an actual document, that needed to be identified with reasonable particularity. If it referred to some other form of agreement, the pleading needed to make that clear. The plaintiff was to file the amended statement of claim by 9.00 am the following morning.

Orders Made

  • The plaintiff was granted leave to amend the fourth further amended statement of claim, with amendments to reflect the basis for the grant of leave as set out in the judgment.
  • The plaintiff was to serve a copy of the fifth further amended statement of claim on all defendants' legal representatives by 9.00 am on Tuesday 10 October 2006.
  • Costs of the amendment application were reserved.

Key Takeaways

  • Allegations of fabrication of evidence and false testimony at committal and trial can form a legitimate basis for amended pleadings in a malicious prosecution claim, provided they are pleaded with adequate particularity.
  • An unlawful agreement among police officers to frame a suspect is not merely a collateral allegation: the court treated such an agreement as directly relevant to both the absence of reasonable and probable cause and the presence of malice, two essential elements of the tort of malicious prosecution.
  • Pleadings referencing an "agreed script" must identify whether that expression refers to an actual document or some other arrangement. Generic or ambiguous descriptions will not satisfy the requirement of reasonable particularity.
  • Late amendments during a hearing will not automatically be refused, but a court will impose conditions to address any prejudice or pleading deficiencies, rather than simply granting or refusing leave outright.
  • The vicarious liability of the Crown for the conduct of police officers alleged to have fabricated evidence remained a live and contested issue in the proceedings, engaging both the Law Reform (Vicarious Liability) Act 1983 and established common law principles.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Civil Procedure Act 2005 (NSW)
- Limitation Act 1969 (NSW)
- Law Reform (Vicarious Liability) Act 1983 (NSW)

Cases
- Darker v Chief Constable of the West Midlands (2000) 3 WLR 747
- Cabassi v Vila (1940) 64 CLR 130
- Queensland v J L Holdings Pty Limited (1996-1997) 189 CLR 146
- A v State of NSW (2005) 63 NSWLR 681
- Trobridge v Hardy (1955) 94 CLR 147
- Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343
- Sharp v Biggs (1932) 48 CLR 81
- Brown v Hawkes (1891) 2 QB 718
- Pringle v Everingham [2006] HCA 195
- State of NSW v Eade [2006] NSWSC 84
- Knight v State of NSW [2004] NSWSC 791
- Pryor v State of NSW (CA 40614/96)
- Behn v Bloom (1911) 132 LTR 87
- Shum Kwok Sher v Hong Kong Special Administrative Region [2002] HKCFA 30
- Regina v Bembridge (1783) 3 Doug 327
- Cropper v Smith (1884) 26 Ch D 700
- Canterbury Bankstown Rugby Leagues Club v Rogers (1993) ATR 62