Citation: Clyne v State of New South Wales (No 1) [2011] NSWSC 629
Court: Supreme Court of New South Wales
Date: 22 June 2011
Judge(s): Fullerton J
Background
The plaintiff brought proceedings against the State of New South Wales for damages, including damages for psychiatric injury, arising from two separate events. The first was her alleged unlawful arrest and false imprisonment on 25 October 2003. The second was a malicious prosecution claim arising from a Court Attendance Notice served on her on 16 August 2007, alleging theft by a servant under s 156 of the Crimes Act 1900.
The plaintiff had been employed at a post office when it was robbed in March 2003. Police received information from an informant that the plaintiff had colluded with the robber, having deliberately disabled the CCTV system and passed him the cash. The same detective who arrested her in 2003 later served her with the Court Attendance Notice in 2007.
The State accepted vicarious liability for the acts and omissions of the relevant police officers under the Law Reform (Vicarious Liability) Act 1983, with proceedings brought pursuant to the Crown Proceedings Act 1988.
Legal Issues
- Whether, at the close of the plaintiff's case, sufficient evidence existed to support a finding in her favour on the malicious prosecution claim under Part 29 r 10 of the UCPR (the equivalent of a no-case-to-answer submission)
- Whether the prosecution was commenced without reasonable and probable cause, a necessary element of the tort of malicious prosecution
- How the court should assess the objective sufficiency of the material available to the prosecutor at the time the charge was laid
Decision
At the close of the plaintiff's case, the defendant applied under Part 29 r 9 of the UCPR to have the malicious prosecution claim dismissed on the basis that a judgment in the plaintiff's favour could not be supported. When the plaintiff's counsel declined to argue that application, the defendant proceeded under Part 29 r 10, which mirrors a common law no-case submission but permits a defendant to later adduce evidence with leave if the application fails.
The applicable test, drawing from Naxakis v Western General Hospital [1999] HCA 22, asks whether, taking the plaintiff's evidence at its highest, there is evidence reasonably capable of satisfying the tribunal of fact that the matters sought to be proved have been established. Fullerton J proceeded to examine each element of the tort of malicious prosecution in light of this standard.
The central issue was whether the prosecution was commenced without reasonable and probable cause. The plaintiff conceded that several pieces of circumstantial evidence, including contact between her and the suspected robber on the day of the robbery, excess cash in her till beyond office limits, and the non-functioning CCTV under her control, were sufficient to raise a suspicion of criminal involvement, though she characterised this as a weak circumstantial case. Fullerton J noted that this circumstantial material alone might conceivably have supported a finding of absence of reasonable and probable cause, but it was not the only material before the prosecution.
The mainstay of the case against the plaintiff was the direct evidence of an informant, who had provided police with information not in the public domain and, in 2006, indicated willingness to give evidence without reward or inducement. While the detective had concerns about the informant's reliability, those concerns were weighed against the quality and exclusivity of the information provided. The plaintiff's counsel conceded that the direct evidence "bolstered" the circumstantial case but could not identify any fatal deficiency in the prosecution. Fullerton J found that the plaintiff's submission on absence of reasonable and probable cause lacked force, and judgment was entered for the defendant on the malicious prosecution claim.
Orders Made
- Judgment for the defendant on the malicious prosecution claim (as pleaded in paragraphs 9, 10, 11, 12 and 12C of the fourth amended statement of claim)
- The plaintiff to pay the defendant's costs, with costs from 2 June 2011 to be paid on an indemnity basis
Key Takeaways
- A Part 29 r 10 UCPR application functions as the equivalent of a common law no-case submission: the question is whether, taking the plaintiff's evidence at its highest, any evidence is reasonably capable of satisfying the tribunal of fact that the elements of the claim are established.
- Absence of reasonable and probable cause is a necessary element of malicious prosecution, and the objective sufficiency of the material available to a prosecutor must be assessed against all facts of the particular case, not by a rigid rule.
- Where an informant provides information not available in the public domain and later expresses willingness to give evidence without inducement, that evidence can properly be weighed by a prosecutor alongside concerns about the informant's reliability.
- In finding for the defendant, the Supreme Court applied the principle from A v State of New South Wales [2007] HCA 10 that the sufficiency of prosecutorial material is a fact-specific inquiry.
- A plaintiff who concedes that direct evidence bolstered a circumstantial prosecution case, but cannot identify a specific fatal deficiency in that prosecution, will face significant difficulty establishing the absence of reasonable and probable cause.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 156
- Crown Proceedings Act 1988 (NSW)
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), Part 29 rr 9 and 10
Cases:
- A v State of New South Wales [2007] HCA 10; 230 CLR 500
- Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269