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District Court 15 June 2017

Wessell v The State of New South Wales

[2017] NSWDC 233

Public order & justice offences
PRACTICE AND PROCEDURE CLAIM FOR MALICIOUS PROSECUTION SUBJECTIVE AND OBJECTIVE ELEMENTS MALICE

Citation: Wessell v The State of New South Wales [2017] NSWDC 233
Court: District Court of New South Wales
Date: 15 June 2017
Judge(s): P Taylor SC DCJ

Background

The plaintiff was forcefully arrested when he was evicted from Housing Commission premises after falling behind on rent. Police charged him with resisting an officer in the execution of duty, but those proceedings were subsequently dismissed in his favour.

The plaintiff then sued the State of New South Wales, which accepted vicarious liability for the police officers' conduct. His claims included false arrest and unlawful imprisonment, assault and battery, and malicious prosecution.

At the close of the plaintiff's case, the State applied under r 29.10 of the Uniform Civil Procedure Rules 2005 for judgment on the malicious prosecution claim alone, on the basis that the evidence adduced could not support a judgment in the plaintiff's favour.

  • Whether the court should give judgment for want of evidence under r 29.10 of the UCPR on the malicious prosecution claim at the close of the plaintiff's case
  • Whether r 29.10 confers a discretion to refuse judgment even where the plaintiff's case cannot be supported, or imposes a duty to give judgment for the defendant
  • Whether the plaintiff had adduced sufficient evidence to support a finding of absence of reasonable and probable cause, having regard to both its subjective element (the prosecutor's honest belief) and its objective element (a sufficient basis for that belief)
  • Whether the evidence was capable of supporting a finding of malice on the part of the prosecuting officer

Decision

Rule 29.10 and the court's approach

The court first addressed whether r 29.10 is purely discretionary or carries an obligation to give judgment when the plaintiff's evidence cannot sustain a verdict. Unlike r 13.4 (summary dismissal) and r 14.28 (strike-out), r 29.10 contains no express discretionary language. Relying on the overriding purpose in s 56 of the Civil Procedure Act 2005 (just, quick and cheap resolution) and the principle stated in De Gioia v Darling Island Stevedoring, the court concluded that judgment must be entered for the defendant when the rule is engaged and the plaintiff's case cannot be supported.

Reasonable and probable cause

Drawing on A v New South Wales [2007] HCA 10, the court confirmed that absence of reasonable and probable cause can be established in either of two ways: proof that the prosecutor did not honestly believe the case (the subjective element), or proof that there was no sufficient basis for such a belief (the objective element). Proof of either is enough; a plaintiff need not establish both. Accordingly, a failure to prove the subjective element is not automatically fatal to the claim if the objective element can be established.

Malice

The court found that no evidence supported a finding of malice or an absence of the prosecutor's belief in the prosecution. The principal basis for the malicious prosecution claim was that the plaintiff's account of events differed from the police facts sheet in several respects. The court observed that a divergence between an accused's account and the prosecutor's case is a feature of many prosecutions and, without more, cannot give rise to an inference of malice or disbelief in the prosecution case. The differences here did not reach a magnitude that displaced the ordinary inference that witnesses have different, sometimes inaccurate, recollections. There was no evidence of an ulterior purpose, no identification of a specific basis for malice, and nothing beyond conjecture or speculation. A finding of malice could not be made to the Briginshaw standard on the evidence before the court.

Orders Made

  • Judgment in favour of the defendant (the State of New South Wales) on the claim for malicious prosecution, pursuant to r 29.10 of the Uniform Civil Procedure Rules 2005.

Key Takeaways

  • Under r 29.10 of the UCPR, the District Court held that once an application for judgment for want of evidence is made and the court is satisfied a verdict for the plaintiff cannot be supported, judgment for the defendant should be entered, guided by the overriding purpose in s 56 of the Civil Procedure Act 2005.
  • A v New South Wales [2007] HCA 10 establishes that absence of reasonable and probable cause in a malicious prosecution claim is an alternate test: proof of either the subjective element (no honest belief) or the objective element (no sufficient basis for belief) is sufficient, and a plaintiff does not need to prove both.
  • Where a defendant applies for judgment under r 29.10 in respect of one cause of action only, that application may proceed separately even though the rule refers to claims for relief rather than individual causes of action, provided the claim is pleaded as a distinct head of damage.
  • Divergence between an accused person's account and the facts sheet relied upon by the prosecution does not, without more, support an inference of malice or a lack of prosecutorial belief, particularly where the difference is explicable by differing recollections.
  • A finding of malice in a malicious prosecution claim must be capable of being made to the Briginshaw standard; suspicion, conjecture, or mere inconsistency between the plaintiff's and the prosecutor's accounts will not suffice.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), s 56
- Crown Proceedings Act 1988 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 202
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 29.9, 29.10

Cases
- A v New South Wales [2007] HCA 10
- Beck v State of New South Wales; Beck v Commissioner of Police New South Wales [2012] NSWSC 1483
- Clyne v State of New South Wales (No 1) [2011] NSWSC 629
- De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1
- Hiddle v National Fire & Marine Insurance Co of New Zealand [1896] AC 372
- Jones v Dunkel (1959) 101 CLR 298
- Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
- State of New South Wales v Beck; Commissioner of Police v Beck [2013] NSWCA 437
- State of NSW v McCarthy [2015] NSWCA 153