Malicious Prosecution “the Elements”
The tort for malicious prosecution is, in forensic terms, the constituent elements were stated by the plurality of the High Court in an extensive decision in A v State of NSW (2007) 230 CLR 500 at [1][1]. These were succinctly reformulated by the High Court in Beckett v NSW (2013) 248 CLR 432 at [4][2] …the plaintiff must prove four things:
(1) the prosecution was initiated and or maintained by the defendant;
(2) the prosecution terminated favourably to the plaintiff;
(3) the defendant acted with malice in bringing or maintaining the prosecution; and
(4) the prosecution was brought or maintained without reasonable and probable cause.
At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a “perversion of the machinery of justice”: Mohamed Amin v Jogendra Bannerjee [1947] AC 322[3]. It is necessary that the plaintiff show that the named defendant played “an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion”: A v State of NSW (2007) 230 CLR 500 at [34]: Stanizzo v Fregnan [2021] NSWCA 195 at [170].
The question of reasonable and probable cause has both a subjective and an objective element;
(1) if the defendant did not subjectively believe the prosecution was warranted — assuming that could be proved on the probabilities — the plaintiff will have established the negative proposition;
(2) however, even when the prosecutor did believe the prosecution was justified, the plaintiff may yet succeed if it can be shown that, objectively, there were no reasonable grounds for the prosecution — A v State of NSW (2007) 230 CLR 500
Immunity
State and Commonwealth Directors as well as prosecutor’s will claim a blanket and unconditional immunity, that means “a public official can do whatever they like, operate on carte blanche, abuse their position in public office causing damage to a plaintiff” and they are free to go, seeking to be removed from the proceedings. That will be their first position.
In the case of Ms McEwan v Commissioner of Taxation & Ors, the defendants Qld DPP and prosecutor Ms McGregor claimed immunity under s 25 of the Director of Public Prosecutions Act 1984 (DPP Act), they were removed from the proceedings when the claimed immunity under the DPP Act.
Ms McEwan successfully appealed the decision of the Primary Judge in the Qld Court of Appeal was handed down on 22 November 2022. The respondents were represented by the Qld Solicitor General who conceded s25 of the DPP Act 1984 did not afford the defendants a blanket and unconditional immunity. Immunity is conditional upon a public officer demonstrating they acted in good faith and without negligence.
The Qld Solicitor General filed a notice of contention claiming Ms McGregor as a Qld State employee should be able to claim a blanket immunity under s26C of the Public Service Act 2008 (PSA 2008), seeking an order Ms McGregor be removed as a party to the proceedings. There is no provision pursuant to s26C of the PSA to remove a State employee from all liability and subsequent proceedings. The citation:
McEwan v Director of Public Prosecutions & Anor [2022] QCA 231
In the case of Nye v The State of NSW, where the Court held that the evidence of the informant was so obviously unreliable that there was no reasonable and probable cause for bringing the proceeding, and indeed that the fact that the proceeding was brought notwithstanding that the prosecution case was objectively so weak was sufficient evidence of malice on the part of the director” Nye v The State of New South Wales [2003] NSWSC 1212
In the case of Le v Plummer (CDPP) & Ors, the fifteenth defendant filed a summary judgment application seeking removal from the proceedings. The Court dismissed the application against the defendant stating he was unwilling to allow a defendant to be removed summarily.
Qld State Government Position Statement to Employees
The Qld Government Website, clearly outlines the scope of protection for those who are afforded protection from civil liability:-
Legal Protection for Government Employees
Protection only applies if you act in an official work duty, in good faith and without gross negligence. The Queensland Government can recover funds or withdraw support if employees have not acted in good faith, been negligent or found guilty in a criminal proceeding.
Essentially “official capacity” has the same meaning as conduct consistent with “good faith” and “without negligent”.
Breach of Solicitor’s Conduct Rules
To conduct a prosecution against a defendant with low prospects of success and without sufficient evidence is not acting in good faith therefore, a clear breach of the DPP’s Prosecutorial Guidelines. The prosecutor would therefore be proceeding without reasonable and probable cause, by doing so fall outside the scope and provisions of the DPP Act of Good Faith and Negligence, a conduct requirement to be afforded immunity:-
– 2.5 prosecution should not proceed if there is no reasonable prospect of a conviction being secured; and
This test will not be satisfied if it is considered to be clearly more likely than not that an acquittal will result.
Abuse of Process
By conducting a prosecution outside the Director’s Prosecutorial Guidelines and without sufficient evidence to proceed, is a tortious infringement or contravention of the rights of an individual.
A common strategy and theme employed by the ATO, Mr Rains and the CDPP withhold exculpatory evidence that defeats charges, robbing an accused of a fair fight in their case to be argued in Court. There can never be a fair trial.
This conduct is consistent with the stories of many other victims that are now coming forward. The ATO has used individuals like Mr Rains to bring accusations in criminal charges against taxpayers without any consideration of the harm and destruction of their livelihoods or damage to reputation, and using tactics of withholding evidence, crippling taxpayers with intense burden by having to defend criminal charges where they either give up and provide a plea of guilty (plea of convenience) to end the torment because they can’t afford the legal bills and mental anguish; alternatively, they don’t give up, they fight for justice.
In the Victorian Court of Appeal case of Mutton v Baker,[5] Whelan and Santamaria JJA referred with approval to what was said by the Privy Council in the case of Amin v Bannerjee:[6]
‘The action for damages for malicious prosecution is part of the common law of England… The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and is designed to discourage the perversion of the machinery of justice for an improper purpose.’[7]
Damages
There is no real guidance as to a range of damages which may be awarded from reported cases, as successful actions in Australia are sparse and amounts awarded can vary significantly, depending on the circumstances of each case. The tide is now turning as more victims come forward.
Cases which can give some insight into judicial reasoning behind awards for damages in malicious prosecution actions include: Houda v NSW, Vivoda v Kealy & Ors, (7) State of New South Wales v Abed,(8) Moses v State of New South Wales (No. 3),(9) Nye v State of New South Wales & Ors, Landini v State of New South Wales & Ors,(10) Lee v Kennedy & Ors,(11) and Adams v Kennedy & Ors.(12)
How to Proceed and Win
The difficulty with succeeding in a malicious prosecution case, the plaintiff needs to demonstrate “malice”. This can sufficiently be demonstrated when the evidence in the possession of the prosecution is weak, see A v State of NSW (2007). It’s now up to you to prove it.
Three of the victims on this website who successfully had their charges dropped and have a very strong case for malicious prosecution and misfeasance in public office is “Jang, McEwan, Bazot”. See below for other cases.
Each presented the prosecution with evidence that defeated the charge. The prosecution refused to drop the charges, even though they did not have the evidence to support the prosecution. In the McEwan case, CDPP prosecutor Roberta Deveraux changed the “case theory” by creating a brand new victim so she could keep the prosecution going.
These victims went on the attack instead of sitting back waiting for their trial date. This strategy goes against how defence solicitors and barristers advise their clients how to run their case – “remain silent until trial”, can be risky.
Pro’s v Cons of disclosing Gaps in the DPP/CDPP’s case
It is a well known fact, the DPP and CDPP will change their case to succeed at trial. This is a common complaint amongst defence solicitors and Barrister, the DPP and CDPP change the case theory with the aim of getting ‘a result’, which flies in the face of fairness and only bringing an accused to justice, the purpose of a criminal prosecution. However, this will go against the prosecution at trial and in malicious prosecution proceedings.
It is important that you have evidence to demonstrate the Director (DPP/CDPP) and prosecutors have evidence of your innocence. If they change their case this is clear malice and misfeasance. The culture within the DPP and CDPP and how they run prosecutions needs to change; from the Directors down.
Your defence Solicitor and Barrister
Sad to say, but many defence lawyers want the trial. This is a common complaint of each of the victims, many lawyers are not interested in providing “no case submissions” to persuade the DPP or CDPP to drop charges, the defence lawyers strategy in most cases is to “prepare for trial”. This does not help the accused be freed from the cost and trauma of defending the charges, and the DPP and CDPP use this to their advantage.
No Case Submissions can Work
A good strong no case submission provided to the DPP/CDPP may help to end the prosecution. It can assist at trial and a later claim for malicious prosecution and misfeasance in public office. If lawyers won’t attack the prosecution case and fight for your liberty, then it may be time to find another lawyer that will.
A Roadmap to Succeed in Your Case – Particulars and Disclosure
In many cases, defence lawyers don’t even request “particulars of each of the charges”, they wait until days out from trial. Unless full and better particulars are provided, the charges are impossible to defend. Don’t let that happen to you, it can leave you ambushed, potentially even lose the trial.
Your solicitor must provide you with all communications between them and the DPP/CDPP, this is your right. It is your right to obtain all emails and all forms of communications. It is important your solicitor points out the weakness in the prosecution case, this will assist you in your claim against the prosecution when they drop the charges or when you succeed at trial. Unfortunately innocent people go to jail, so fighting for your rights is important. Nobody is invested in your rights and liberty as much as you are.
Remember, if you are planning on suing the prosecutors post trial or after your charges are discontinued, then you need to show they had a weak case and you gave them an opportunity to discontinue the charges however, refused.
Particulars
Ask you solicitor to:
- request particulars of each and every charge; and
- provide the documents that prove up their case to each and every charge.
Position Paper Senior Judge Administrator District Court:
https://www4.austlii.edu.au/au/journals/QldJSchol/2022/29.pdf
Most defence solicitors and barrister won’t request the particulars and documents. You are providing instructions to your legal team, take the reins and get them to make the DPP and CDPP accountable.
If you are innocent, they won’t be able to provide the particulars and exhibits. Keep pressuring the prosecutor to respond. You will have your evidence they proceeded without reasonable and probable cause, this is the first step a prosecutor must do before even laying the charges. What is clear from many defendants, the prosecutors don’t forensically review the case early.
Review: ask the questions – What are the elements, and does the prosecution have the evidence to support each and every element of each and every charge.
If your solicitor does not add pressure, then ask questions, it is your solicitor’s job to protect you and get the charges dropped without the need for a trial.
A Must: Serve a subpoena on the ATO and or CDPP/DPP
If your charges are brought by the ATO that relate to your or your company’s tax, GST or R&D grant, there are critical documents you need to obtain before the matter goes to trial.
What should the subpoena be seeking?
To the Commissioner of Taxation/ Australian Taxation Office and the person with their name on the Charges:
1. Copies of any and all Siebel records Microsoft Office Communicator records (MOC), Integrated Core Processing (ICP), and MASCOT data, notes, files notes, correspondence, emails or letters (however described) and whether types or handwritten which relates to:
1.1 the decision to issue any Notice to accused (name) between date and date, including any agreement made with respect to the timing of the issuing of the notices.
1.2 the Compulsory Interview Name attended on date at the Australian Taxation Office at (address).
1.3 the complaint made by (name) to the Inspector General of Taxation regarding the conduct of the ATO, Mr X, and Ms X (names) and the breach of the Australian Public Service Code of Conduct (if you have not done this, do this immediately under the Code); and
1.4 any inquiries made, disciplinary action taken, determination made, and decision made by the Australian Taxation Office against X (name of ATO officer) relating to the complaint made by the accused (name) to the Inspector General of Taxation regarding abuse of process and or breach of the Australian Public Service Code of Conduct.
2. Copies of any and all documents relating to any and all inquiries made, and disciplinary action taken by the Australian Taxation Office against X (ATO Officer) arising out of any complaint made by the accused to the Inspector General of Taxation or ATO Ombudsman.
3. Copies of any and all Siebel records Microsoft Office Communicator records (MOC), Integrated Core Processing (ICP), and MASCOT data, notes, files notes, correspondence, emails or letters (however described) and whether types or handwritten which relates to the criminal prosecution of the accused (name) indictment/proceedings number.
4. Copies of any and all notes, file notes, records, letters, emails or correspondence (however described) and transcripts of any:
4.1 audio call between any Australian Taxation Officer (name) and the accused (name) between date and date.
4.2 any conversation (in person or via telephone) between ATO officer (name) and ATO officer (name) between date and date.
4.3 any audio call between Australian Taxation Officer (name) and any other Australian Taxation Officer (name) relating to the accused (name) between date and date.
5. Disclosure of the name/s and contact details of any and all persons within the Australian Taxation Office who had accessed (physical or electronic), or currently have access (physical or electronic) to the Australian Taxation Office’s brief to the Commonwealth Director Public Prosecutions in proceedings number X
6. Disclosure of the names and contact details of any and all persons within the Australian Taxation Office who had accessed (physical or electronic), or currently have access (physical or electronic) to the Australian Taxation Office’s prosecution brief to the Commonwealth Director Public Prosecutions (CDPP) in proceedings number X (matter number).
7. Disclosure of the names and contact details of any and all persons within the Australian Taxation Office who had accessed (physical or electronic), or currently have access (physical or electronic) to the accused (name) Compulsory Record of Interview.
8. Disclosure of the name/s and contact details of any and all persons within the Australian Taxation Office who disclosed the accused’s (name) Compulsory Interview to the CDPP.
9. Disclosure of the name/s and contact details of any and all persons within the Australian Taxation Office who had accessed (physical or electronic), or currently have access (physical or electronic) to the accused (name) Compulsory Record of Interview and disclosed the Compulsory Interview with a person or organisation outside of the Australian Taxation Office.
Cost Implications – Taxpayer funds
The prosecutors are spending taxpayer funds, sadly they don’t consider the cost implications on defendants by prosecuting cases with poor prospects.
References
- A v State of NSW (2007) 230 CLR 500
- Beckett v NSW (2013) 248 CLR 432
- McEwan v Director of Public Prosecutions & Anor [2022] QCA 231
- Mohamed Amin v Jogendra Bannerjee [1947] AC 322
- Nye v The State of New South 1212
- Mutton v Baker
- Amin v Bannerjee
- Houda v NSW, Vivoda v Kealy & Ors
- State of New South Wales v Abed
- Moses v State of New South Wales (No. 3)
- Landini v State of New South Wales & Ors
- Lee v Kennedy & Ors
- Adams v Kennedy & Ors
CDPP’s Prosecutorial Guidelines
https://www.cdpp.gov.au/sites/default/files/Prosecution%20Policy%20of%20the%20Commonwealth.pdf
Being charged and therefore exposed to the risk of loss of liberty has been held to constitute sufficient damage: Rayson v South London Tramways [1893] 2 QB 304
Other Cases
Commonwealth Life Assurance Ltd v Smith (1938) 59 CLR 527.
Beckett v New South Wales [2013] HCA 17
Rejfek v McElroy (1965) 112 CLR 517.
Mitchell v John Heine and Son Ltd (1938) SR (NSW) 466.
Rayson v South London Tramways [1893] 2 QB 304
Coco v The Queen
Colbran v NSW