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District Court 24 October 2023

Horton v Padoani

[2023] NSWDC 447

Assault & violence
TORTS MALICIOUS PROSECUTION

Citation: Horton v Padoani [2023] NSWDC 447
Court: District Court of New South Wales
Date: 24 October 2023
Judge(s): Weber SC DCJ

Background

The two plaintiffs and the defendant were long-term neighbours in Double Bay with a history of disputes spanning approximately 20 years, including prior Police attendances and Apprehended Violence Orders. On 2 November 2019, two separate incidents occurred within about 20 minutes of each other. In the first, the first plaintiff discharged an air horn twice in the direction of the defendant over the back fence during an argument about water restrictions. In the second, the second plaintiff discharged the same air horn at the defendant after the defendant was observed cutting bamboo that overhung the fence.

The defendant attended a medical centre that afternoon, reporting ear pain, and subsequently made a statement to Police at Rose Bay Police Station. Police charged both plaintiffs with common assault. When the matter came before the Local Court in November 2020, the magistrate dismissed the charges, though the plaintiffs were unsuccessful in obtaining a costs order against Police.

The plaintiffs then brought proceedings in the District Court against the defendant in the tort of malicious prosecution.

  • Whether the defendant could be regarded as having instigated or maintained the criminal prosecution, rather than Police having acted independently
  • Whether the defendant acted maliciously in making the complaint to Police
  • Whether the defendant lacked reasonable and probable cause for making the complaint

Decision

The central question was whether the defendant had played a sufficiently active role in initiating or maintaining the prosecution to attract liability. The court applied the principles from A v State of New South Wales (2007) 230 CLR 500 and the Court of Appeal's summary in Sahade v Bischoff [2015] NSWCA 418, which together confirm that a complainant may be treated as having instigated proceedings where they put Police in possession of information that virtually compels a charge to be laid, particularly where the facts are solely within the complainant's knowledge and Police have no independent basis to test the accusation.

Weber SC DCJ found that this was not such a case. The incidents were captured on CCTV footage, which the defendant provided to Police along with her statement and medical certificates. Crucially, the events were observable and verifiable beyond the defendant's own account. The court found that Police exercised their own independent prosecutorial discretion, consistent with NSW Police prosecution policy requiring proceedings to be in the public interest. The defendant had not misled or unduly influenced that discretion; she had simply furnished information that Police then assessed independently.

On the question of malice, the court accepted that significant ill will may have existed between the parties, but found that the defendant's dominant purpose in reporting the matter was the proper invocation of the criminal law, rather than an improper purpose. The court considered that even between strangers, what occurred that afternoon objectively warranted the involvement of Police.

On reasonable and probable cause, the court found that both the objective and subjective elements were satisfied. A reasonable person would have regarded the reported facts, which were partly corroborated, as sufficient to ground the charges. The court also found that the defendant held an honest belief that offences had been committed. Accordingly, all three of the remaining elements of the tort failed, and judgment was entered for the defendant.

Orders Made

  • Judgment and verdict for the defendant against the plaintiffs
  • The plaintiffs to pay the defendant's costs

Key Takeaways

  • A complainant who provides Police with a statement, supporting footage, and medical evidence does not automatically become the "prosecutor" for the purposes of malicious prosecution; where Police exercise independent discretion based on verifiable material, the complainant is not treated as having instigated proceedings.
  • The District Court confirmed that liability in malicious prosecution requires the defendant to have played an active role in setting proceedings in motion, which may arise where the facts are solely within the complainant's knowledge and Police have no independent means of testing the accusation, following Martin v Watson [1996] AC 74 and A v State of New South Wales.
  • Significant ill will between parties does not, by itself, establish malice; the court examines the dominant purpose of the complaint, and reporting an objectively serious incident to Police may satisfy that purpose even in the context of a bitter ongoing dispute.
  • Reasonable and probable cause involves both an objective element (whether a reasonable person would have regarded the reported facts as sufficient) and a subjective element (whether the complainant honestly believed an offence had occurred); both were satisfied on the facts here.
  • In dismissing the proceedings, the court reinforced that the tort of malicious prosecution sets a high bar for plaintiffs, particularly regarding instigation, where Police retain and exercise genuine prosecutorial discretion.

Legislation and Cases Referenced

Cases:
- A v State of New South Wales (2007) 230 CLR 500
- Sahade v Bischoff [2015] NSWCA 418
- Martin v Watson [1996] AC 74
- Commercial Union v Ferrcom Pty Ltd (1991) 22 NSWLR 389
- Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 56; 53 CLR 343 (referenced within judgment)
- Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 (referenced within judgment)

Legislation: No specific legislation was cited in the decision.