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Supreme Court 19 April 2007

Thomas v State of NSW

[2007] NSWSC 366

Public order & justice offences
MALICIOUS PROSECUTION FABRICATION BY POLICE OF ADMISSIONS INSTITUTION OF CRIMINAL PROCEEDINGS WHO IS THE PROSECUTOR MATERIAL AVAILABLE AT TIME OF CHARGE PRESENCE OF MALICE.

Citation: Thomas v State of NSW [2007] NSWSC 366
Court: Supreme Court of New South Wales
Date: 19 April 2007
Judge(s): Price J

Background

The plaintiff was convicted in 1988 of assault occasioning actual bodily harm and causing grievous bodily harm with intent to murder, arising from a brutal attack on another prisoner. He served nearly eight years in custody before the Court of Criminal Appeal quashed his convictions and entered verdicts of acquittal in 1999. The acquittals followed revelations at the Police Royal Commission that the two detectives who investigated the matter had fabricated admissions attributed to the plaintiff during his police interview.

The plaintiff then brought proceedings against the State of New South Wales for malicious prosecution, alleging that the detectives had invented the admissions and had no reasonable and probable cause to charge him. The State admitted vicarious liability for the detectives' conduct. The plaintiff sought general, aggravated, and exemplary damages, compensation for deprivation of liberty, and past and future economic loss.

One of the detectives had given evidence at the Royal Commission expressly acknowledging that he had "verballed" the plaintiff in order to assist in convicting him. Despite this, the plaintiff's claim ultimately turned on whether all required elements of the tort were made out.

  • Whether the detectives, rather than the Director of Public Prosecutions, were the relevant "prosecutors" for the purposes of the tort of malicious prosecution
  • Whether the plaintiff established that the defendant lacked reasonable and probable cause to institute the criminal proceedings
  • Whether the defendant acted with malice in initiating the proceedings
  • Whether all elements of the tort of malicious prosecution were established, entitling the plaintiff to succeed

Decision

Price J applied the elements of malicious prosecution as confirmed by the High Court in A v State of New South Wales [2007] HCA 10, requiring the plaintiff to establish: institution of proceedings by the defendant; termination of those proceedings in the plaintiff's favour; absence of reasonable and probable cause; and malice. All four elements must be proved.

On the question of malice, the court found in the plaintiff's favour. The dominant purpose behind the fabrication of the admissions was to secure a conviction, which is a purpose other than the proper invocation of the criminal law. Price J was satisfied that the charging detective acted maliciously when initiating the proceedings.

However, the plaintiff failed on the separate element of reasonable and probable cause. The court assessed the material available to the charging detective at the time of charge, independent of the fabricated admissions. That material included compelling eyewitness and prisoner accounts of the assault, medical evidence of severe injuries, and evidence placing the plaintiff at the scene. Objectively assessed, that evidence was capable of supporting the charges, and the detective held an honest and justifiable belief that there was a proper basis for prosecution.

Because the plaintiff could not establish absence of reasonable and probable cause, the tort was not made out. Proof of malice alone was insufficient. Verdict and judgment were entered for the defendant.

Orders Made

  • Verdict and judgment for the defendant against the plaintiff
  • The plaintiff is to pay the defendant's costs

Key Takeaways

  • All elements of the tort of malicious prosecution are independent requirements; establishing malice alone does not entitle a plaintiff to succeed if absence of reasonable and probable cause is not also proven.
  • "Malice" in malicious prosecution is distinct from malice in law. It requires proof that the dominant purpose of the person initiating proceedings was something other than the proper invocation of the criminal law, not merely that an unlawful act was committed intentionally.
  • Reasonable and probable cause is assessed objectively by reference to all material available to the charging officer at the time of charge, excluding fabricated evidence. Where sufficient honest, independent evidence existed to support the prosecution, the element of absence of reasonable and probable cause is not established, even if false evidence was also used.
  • A charging officer can hold an honest and objectively justifiable belief in a proper basis for prosecution even where, simultaneously, that officer has acted with malice by fabricating additional evidence to secure a conviction.
  • Vicarious liability of the State for the conduct of police officers does not alter the requirement that each element of the underlying tort must be established by the plaintiff.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 35, 59
- Crown Proceedings Act 1988 (NSW), s 5
- Director of Public Prosecutions Act (NSW), s 9(4)
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 5 (and s 8)

Cases:
- A v State of New South Wales [2007] HCA 10
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Commonwealth Life Assurance Society Ltd v Smith (1937-1938) 59 CLR 527
- Commercial Union Assurance v Lamont [1989] 3 NZLR 187
- Davis v Gell (1924) 35 CLR 275
- Herniman v Smith [1938] AC 305
- Hicks v Faulkner (1878) 8 QBD 167
- Mitchell v John Heine (1939) 38 SR 466
- Neat Holdings Pty Ltd v Karajan Holdings (1992) 67 ALJR 170
- Nye v State of New South Wales & Ors (2004) Aust Tort Reports 81-725
- Rejfek v McElroy (1965) 112 CLR 517
- Trodbridge v Hardy (1955) 94 CLR 147