A v State of New South Wales & Ors [2006] HCATrans 496 (6 September 2006)

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A v State of New South Wales & Ors [2006] HCATrans 496 (6 September 2006)

Last Updated: 6 September 2006

[2006] HCATrans 496

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S59 of 2006

B e t w e e n -

A

Appellant

and

STATE OF NEW SOUTH WALES

First Respondent

JOHN FLOROS

Second Respondent

SHARYN HANNIGAN

Third Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 SEPTEMBER 2006, AT 10.04 AM

(Continued from 5/9/06)

Copyright in the High Court of Australia

__________________

GLEESON CJ: Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, I propose to look at the issue of reasonable and probable cause in relation to the child D and then separately in relation to the child C and then to look at the question of malice. In relation to D, your Honours, the child was 11 years old when he was interviewed firstly on 13 October 2000. This material is set out in some detail in our written submissions. I will not go to references to the appeal books unless they are not in there, if that is satisfactory. He was accordingly eight years old at the time that he said that the incident occurred that formed the basis of the charge.

He was interviewed again on 19 October and he maintained that same allegation. The police officer considered that D was a credible witness. What he said was – and this is a reference that is not in the written submissions, so I will give it to your Honours; it is volume 1 of the appeal books at 460, point 8 – that he came across quite truthfully in the interview, according to the police officer.

HEYDON J: It is actually in the written submissions, paragraph 32.

MR SEXTON: It is, 460 is there, your Honour, yes.

KIRBY J: Is this the second respondent who is speaking?

MR SEXTON: Yes, your Honour. The child D maintained the basis of these claims, not only in interviews, but also in the Children’s Court proceedings and his account was largely consistent. Now, the additional material on which the police officer relied in addition to the allegation itself made by the child was as follows. Firstly, that the Children’s Court had, on the balance of probabilities, found that both children had been abused, although the police officer acknowledged that he was aware that he was still required to exercise his own decision-making function in relation to the charges.

GLEESON CJ: Do we know the kind of information on which the Children’s Court acted in coming to that conclusion?

MR SEXTON: I do not think it is before the Court, your Honour, no. Simply we know the findings and we know the orders that were made by the court.

CALLINAN J: Children are not able to be cross-examined in the court, are they?

MR SEXTON: I do not know the answer to that, your Honour.

CALLINAN J: Because here there had to be a special application made for the children to be present to be cross-examined at the committal, so I inferred from that that there was no cross-examination of them in the Children’s Court.

MR SEXTON: I am told that there was not, your Honour.

CALLINAN J: I would like to know because it might be relevant on the basis that the children’s evidence has not been tested.

MR SEXTON: That is quite so, your Honour.

CALLINAN J: It may not be against you, Mr Solicitor. It may be for you.

MR SEXTON: I am not suggesting, your Honour, that it was a finding equivalent to that of a criminal trial, simply that it was a matter that was taken into account and could be taken into account by the police officer.

CALLINAN J: Well, it is balance of probabilities too.

MR SEXTON: The police officer also considered it significant that the appellant had stated in his interview that his wife and her daughter went shopping on Thursday evening so that there may have been one or two occasions, as he said, when he was alone with D at about the time the allegation was said that had occurred and when the work rosters were checked they established that on nearly all of the Thursdays in that month or so the appellant was, in fact, off duty from work.

The trial judge expressed the view that this reliance by the police officer overlooked the fact that D’s leg was in a plaster cast at the time and he was using a walking frame, but the appellant had stated in his interview that D was reasonably mobile at the time. The police officer also relied on evidence given by the wife in her interview that D had referred to sexual abuse by his stepfather as early as January 2000. The fact that C, the other child, had claimed also sexual assault in a similar fashion relied on evidence from various sources – and I will come to these perhaps in relation to C – that the mother either believed or suspected that the appellant had sexually abused the two boys.

Now, inasmuch as there is a subjective element to the decision that was made to lay the charge against both children, the police officer gave evidence that he, to quote him, formed the belief that the appellant did commit those things that the children said he did. He said specifically:

I believed in my mind, very much so, based on what I had read over a long period of time and what I could remember by the way the children gave their information, that the offences had been committed by [the appellant].

KIRBY J: Where is that exactly?

MR SEXTON: That is at volume 1 of the appeal book at page 472, point 8, your Honour, and two further references where he said - - -

GUMMOW J: What are we doing all this for, Mr Solicitor? The question is: were there findings of fact by the primary judge on these questions? If so, were they upset by the Court of Appeal? If so, should they be re-upset by us?

MR SEXTON: Yes, your Honour.

GUMMOW J: What are you trying to demonstrate? We are not the primary judge. We are not doing it all again.

MR SEXTON: Well, your Honour, except in relation to one matter of credit concerning the conversations with Mr Walsh, the Court of Appeal was in just as good a position as the trial judge to draw a conclusion from these materials and now that it has come to this Court we would say that that is what this Court will - - -

KIRBY J: Is that quite right? I mean, if the question is that is an issue for us, the belief of the constable, the second respondent, then deciding whether that person has a belief is conventionally a matter that involves looking into his or her mind and that conventionally is something that is taken on an impression of the whole of the evidence and putting it all together and thinking about it, and that normally is a function of the primary judge. Now, we were warned in the special leave application not to revive the pre-Della Maddalena authorities and the pre-Fox v Percy, and I am not suggesting that, but nonetheless it is a composite judgment of whether the officer did believe. That is why the primary judge really is conventionally accorded a great deal of respect by appellate courts on such questions.

MR SEXTON: Well, let me come to that, your Honour. I will just add another reference in a moment, but this was raised in the context of evidence by the police officer that he believed the allegations that were made by the children. What the trial judge said in relation to the child D is at page 1797 of volume 5 of the appeal books, paragraph 384 of his judgment. He said:

The plaintiff has failed to satisfy the court on the balance of probabilities that Detective Constable Floros did not have reasonable grounds for believing and that he did not in fact believe that the plaintiff had committed the offence –

So that in relation to D, it is a finding by the trial judge that the plaintiff had failed to establish that the police officer did not, in fact, believe that the plaintiff had committed the offence.

Now, in relation to C – I am coming to C, but if I just deal with C on this particular point. On 1799 of the same volume, paragraph 392 of the trial judge’s judgment, he there says:

In relation to the charge involving [C] . . . Detective Constable Floros did not believe that the plaintiff had committed the offence, or alternatively, that if he did believe it, then such belief was not based upon reasonable grounds.

GLEESON CJ: What is the finding there?

MR SEXTON: That is a good question, your Honour. There does not seem to be an actual finding about belief, but in any event what we would say is that he does not specifically reject any of these instances of the evidence by the police officer in saying that he believed the interviews of the child, that he believed their allegations, that he believed - - -

GLEESON CJ: Barristers can put arguments in the alternative but it is a little unusual for judges to make findings of fact in the alternative.

MR SEXTON: That is right. So there seems to us to be a problem about that particular finding by the trial judge.

GUMMOW J: What paragraph is that?

MR SEXTON: Paragraph 392 on page 1799, your Honour.

HAYNE J: Now, that throws up a difficulty about sequential reasoning that arises from the jury nature of these trials originally. There are at least three ideas in play. There is the prosecutor’s state of mind. There is the basis on which the prosecutor had that state of mind. Those two elements are relevant to reasonable and probable cause. There is then the third element of malice which encompasses questions of motive and purpose. Now, if you have a jury trial, you ask the questions about reasonable or probable cause and the question about malice but direct the jury to answer the questions about reasonable or probable cause first and they do not get to question three about malice unless they have given particular answers to reasonable or probable cause questions.

What that masks is this. The question about malice is one that encompasses such things as personal animus but, at least at the moment, seems to include things like collateral motive – and this is a case here of collateral motive as I understand it. The relationship between the conclusion you reach about malice and the conclusion you reach about what the prosecutor’s state of mind was, is that to be linked or not linked? If it is to be linked, does that presuppose that the prosecutor can have mixed motives? Does it presuppose that the question about the belief of the prosecutor, whatever that is, is to be resolved according to notions of sole or dominant characterisation or not?

Now, none of these questions are looked at in the authorities. None of them emerge here directly, but underlying the argument on both sides of the record seems to be the notion that once you conclude that there was collateral purpose that somehow speaks to the question of the belief of the prosecutor. Now, where are we going, Mr Solicitor? What does the State say is the appropriate approach to these questions?

MR SEXTON: Just on that point, your Honour, we would say that reasonable and probable cause and malice are separate issues, although there is a link between them. An obvious absence of reasonable and probable cause might of course support a finding of malice, although, looking at it in the opposite direction, something that the Chief Justice raised yesterday, although the trial judge’s finding in relation to D is expressed in a negative way, if it in effect amounts to a finding that he did believe that the charges should go forward and properly believed that, it would then be an odd thing to find, as the trial judge did, that there was malice and improper purpose in relation to the laying of that charge. So that it seems to us to be a problem about the finding of malice by the trial judge, at least in relation to D.

HAYNE J: But that question about reasonable or probable cause is presently presented in terms of belief, belief in guilt, belief in being fit for trial and the like, and its formulation may owe much to the facts which underlie the particular case. At its base, is the question one directed to whether the prosecutor has honestly formed the view that the material available warranted the laying of a charge? I use the word “honestly” rather than questions of belief to encompass cases where, for example, the prosecutor, the employer, the store, whatever it is, knows the facts of its own knowledge.

The honesty would be much affected by questions of belief. But belief where you are acting on hearsay, how gullible are you? Belief seems to intrude notions of personal approval which are not apt, whereas honesty, you are asking a question about the honesty of the prosecutor. Then you ask: did the material which the prosecutor had available support the formation of a view? That is the objective element. Then and only then do you get to questions of malice in a jury trial, but what do we do now that there are no jury trials? What is that saying about the way in which the questions are to be approached?

The problem is provoked by the decision referred to by Lord Radcliffe, Blachford v Dod[1831] EngR 543; , 2 B & AD 179, 109 ER 1110. Lord Radcliffe refers to it as a case where questions of belief do not emerge, but what I think does emerge in the case is was the prosecutor acting honestly. Where are we other than at sea without a compass or a rudder at the moment, Mr Solicitor?

MR SEXTON: Well, I think, as I said yesterday, your Honour, and I think Justice Heydon mentioned yesterday, that most of the tests and the formulations in the cases are not especially helpful, and we would concede that, but there seems to a subjective element and an objective element. Your Honours just identified two of those in particular terms. We would say that reasonable and probable cause is something that logically would be considered prior to malice.

HAYNE J: But that presupposes that you cannot have mixed motives. It presupposes that you are looking – or does it presuppose that you are looking for sole or dominant characterisation?

MR SEXTON: In relation to malice or - - -

HAYNE J: The strength of the case against you is at least in part derived from the fact that there seems to be a finding that the charges were laid in part to keep others off the back of the prosecuting authority. Now, if that is malice and it is held to be, what is that saying about honesty of the formation of the view that the material available warranted laying the charge? What do you do about the fact the policeman says, “Left to me, I wouldn’t have charged your client”?

MR SEXTON: Well, he said that much later, your Honour, but - - -

KIRBY J: But he said it, and the primary judge thought it was important, and the primary judge accepted that he had said it.

MR SEXTON: But in the case of D, the primary judge found that there was reasonable and probable cause, which in one sense encompasses the notion that he honestly believed the charges should go forward. So there is a problem, we would say, about the findings by the trial judge, but we would say that the first question is reasonable and probable cause. I have just been through in relation to D to make the argument that there was reasonable and probable cause in relation to D and that the trial judge did not find to the contrary.

GLEESON CJ: Well, you would need to make that argument because there is an attack in this Court on the trial judge’s finding.

MR SEXTON: Yes.

GLEESON CJ: As I understand it, that was the subject of a cross-appeal in the Court of Appeal and you now have concurrent findings on that in relation to D.

MR SEXTON: That is right, your Honour yes.

GLEESON CJ: But there is an attempt in this Court to have us reverse those concurrent findings.

MR SEXTON: That is so, your Honour. Your Honours, I was going to move to the child C where the trial judge found that there was not reasonable and probable cause, and that finding was reversed by the Court of Appeal. Again, the starting point so far as the police officer was concerned was the evidence of the child himself. He was nine years old at the time and he was interviewed on three occasions.

We do not pretend that the case in relation to C had the same strength as the case in relation to D, but it is important, we would say, that the two cases arose out of the same household. They had that link between them.

KIRBY J: You cannot pretend that they were the same because C first said that an offence happened and then C withdrew that and then C said it had happened and then C withdrew that.

MR SEXTON: Well, let me come to the sequence, your Honour. In his first interview he did not say that he had been sexually assaulted, that is so. The second interview was conducted five days later, after he had been taken into foster care, and that, in the police officer’s mind, was an important thing because he considered that it was significant that at that stage he was out of his parents’ domain. He considered that was significant.

KIRBY J: Were the two boys together in foster care?

MR SEXTON: They were both in foster care. Whether they were in the same house or not, we are not sure, your Honour.

KIRBY J: Because I think at one stage C said he had given his version to support his brother.

MR SEXTON: Yes, that is right. So the middle interview he made various allegations, one of which formed the basis of the charge that was ultimately brought and he also made an allegation in relation to a trip to Canberra, to which I will return in a moment. Then in the third interview he retracted in part, but not in total, and he maintained some of the allegations. The police officer considered that the descriptions that he gave were credible for a child of that age and he particularly considered that the child had been embarrassed in the first interview because of the presence of one of his school teachers, whereas in the case of the second interview he had been removed from his parents.

GLEESON CJ: The charge, I presume, did not relate to conduct in the ACT?

MR SEXTON: It did not, your Honour, no. I will come to the ACT. In relation to the third interview, the police officer thought that he was homesick and that in fact he wanted to be returned to his mother’s care. In relation to additional material on which the police officer relied, he relied again on the fact that the Children’s Court had found on the balance of probabilities that there had been abuse of both children.

In relation to the evidence concerning Canberra, he made an allegation in relation to a trip that he said was made to Canberra with his stepfather. The appellant said that he had never stayed overnight in Canberra alone with this child but there was a range of other evidence that was obtained by the police officer that suggested that he had stayed in Canberra alone - - -

CALLINAN J: He did not test that evidence. The child’s evidence was of a different room and a different layout, and none of that was tested. The trial judge made that - - -

MR SEXTON: It was not tested then, your Honour.

CALLINAN J: But it was not investigated. That is what I really mean. It was not investigated, not tested.

MR SEXTON: Well, there was some investigation.

CALLINAN J: But only the most casual investigation. If the matter had been explored at all, it would have turned out that nearly all the circumstantial details given by the child were wrong.

MR SEXTON: Your Honour, going back to that time, it does not follow because some of those details were inaccurate, in our submission - - -

CALLINAN J: They were almost all wrong. There was not even a room of the number that the child said. He said room 10 or something, did he not? It did not exist.

MR SEXTON: Your Honour, the recollection of a room number - - -

CALLINAN J: But the child went into those circumstantial details.

MR SEXTON: Can I just put this to your Honour, that what the investigations revealed was that the appellant had written a letter to one of the child’s teachers advising that on the dates in question the child would be travelling “with me”, the letter said, “to Canberra”. This is in a context where the appellant had denied that he had travelled to Canberra alone with the child.

KIRBY J: That letter was in evidence, was it?

MR SEXTON: It is referred to at volume 4 of the appeal book at 1672. He said in the letter:

I will be taking him to various venues in and around Canberra.

There was no letter written to the school about the other child at that time. The school roll indicated that the child C had been absent from the school on those dates in contrast to his sister’s school roll which said that she was there on at least one of those days. This was in the context where it was said that the whole family had gone to Canberra and C’s teacher made a statement that the child, C, had told her:

a number of times –

during that term –

that he was going to Canberra with Dad”. Afterwards, she had assisted C to write a story about “what [C] and his Dad had done. In C’s school journal, C wrote “on Monday morning Dad and I went in the red car. Dad and I had breakfast at [McDonald’s]”.

The police officer contacted the director of the coach company for whom the appellant worked and he –

recalled that the appellant had asked him whether there was suitable trip to take “one of the boys” to Canberra. No such trip arose, but he thought he recalled the appellant telling him that he and C went to Canberra by car. A receipt from the Heritage Hotel revealed that the appellant had paid for one room on –

the night in question. Now, it is true, as Justice Callinan says, that there were aspects of the evidence in details that were not checked out, but we would say that at this stage of the proceedings that this was material, that the police officer was entitled to rely on it and it went to the question of the credibility of the appellant and his wife who had given evidence about the trip.

Another matter, of course, that was relied on was the fact that the other child had made allegations of the same kind. That is why I say there is an obvious link between the two cases. There was evidence from a number of sources, the police officer whereof suggesting that the child’s mother either suspected or believed that the appellant had abused both the children. The child stated in his interview - - -

KIRBY J: That was at different times, as I understand it. The child’s mother did not believe it throughout the whole of the relevant period.

MR SEXTON: Her evidence varied or her interviews varied, your Honour, but the child stated in his interview that his mother had held a knife at the appellant’s throat and demanded to know the truth of what had occurred and his mother agreed that that had happened. She said that after the boys had made their allegations she had endeavoured not to leave them unattended with the appellant. These are simply matters that were taken into account at that time by the police officer. Friends of the family, a husband and wife, said in their interviews that the mother had told them that there had been sexual abuse of the children by the appellant.

These were all matters that bore on the mind of the police officer. He knew that the child had made allegations of abuse to other persons. The mother stated that the child had discussed the alleged abuse with a friend at school and the police officer was also aware that the child had told the DOCS officer who was supporting him during the Children’s Court proceedings that he had been abused.

There was considerable evidence about the fact that there was no doorknob on the boys’ bedroom. This was demonstrated by photographs that were taken during the execution of the search warrant. The trial judge was critical of the police officer’s reliance upon this and it is true that the other members of the family gave contradictory evidence about the issue of the doorknobs, but in his evidence at the trial in the District Court, the appellant agreed that the reason the doorknob had been taken off was because of concerns that the mother had about the appellant and the two children. That is at the first volume of the appeal book at 173 point 6.

KIRBY J: There is a lot of evidence about a crucifix.

MR SEXTON: There never was – it is a false issue. It was a mistranscription.

KIRBY J: What should it have read?

MR SEXTON: It is a reference to bringing in the groceries. It is a considerable mistranscription, but I do not think there is any dispute about this.

KIRBY J: Well, I will not say what I was going to say.

MR SEXTON: No, your Honour.

CALLINAN J: Mr Solicitor, can I put a matter to you that is exercising my mind? The fact that you have a Children’s Court and it can act pre-emptively, as it were, which it did here, or acted very speedily and removed the children from perceived jeopardy, really to me highlights the need, the danger having been removed, for any police prosecution or any prosecution of this kind to be brought with great care and deliberation.

There is no urgency, in the sense that the children are now protected, and one wonders whether when pressure has been put in those circumstances it is likely to encourage overzealousness and is perhaps an overreaction to complaints that are made because, as it turned out here, the children had made groundless complaints, one of them probably because of his own unhappiness and dissatisfaction with his stepfather, which one can understand. You might not understand the nature of the complaints that he made, but that he was unhappy and might be inventive can be understood.

MR SEXTON: Well, in relation to your Honour’s first point that prosecutors have often been criticised for delay, in our submission, if the prosecution was going to proceed, it needed to be done reasonably speedily.

CALLINAN J: Why? Better to be slow and correct, slow and right, than quick and wrong. There was no urgency. The children were out of jeopardy.

MR SEXTON: That is so, your Honour, but the question of laying the charge did not preclude, of course, further investigations, but the question is whether at that time of laying the charges there was reasonable and probable cause. As your Honour appreciates, we make the argument that there was.

CALLINAN J: Anyway, I am just putting the matter to you so you can deal with it; that is all.

MR SEXTON: Well, your Honour, I do not think we would accede to the proposition that the charges should have been significantly delayed.

CALLINAN J: No, I am not talking about delay, but fully and properly investigated and if that involved what you would describe as a delay, so be it. I would not only apply it to cases involving children. Prosecuting authorities should not – I am not suggesting that happened here, but they should not be reacting to something that they read in the newspaper or a question asked in Parliament or things of that kind. Prosecuting authorities should exercise care and that is what the guidelines are directed to in deciding whether to prosecute.

MR SEXTON: Well, your Honour, these are very difficult cases where allegations take this form and what we say is that in the case of both children that there was adequate material for the laying of the charges. One case was no doubt stronger than the other, but the cases were linked. They both came out of the same household. The trial judge declined to find an absence of reasonable and probable cause in relation to one of the children and the Court of Appeal in relation to both children declined to make that finding.

CALLINAN J: But the trial judge did say that there should have been further investigations, for example, about the Canberra visit. I only select that as an example. He dealt with the doorknobs and things of that kind.

MR SEXTON: There had been quite extensive investigations. No doubt there could always be additional steps taken, but at some stage the prosecutor has to make a decision.

CALLINAN J: I know, he has to make a decision, I understand that, but the impact of a charge like this is absolutely devastating if it is not right. You can see that from what the trial judge said about the stress illness.

MR SEXTON: But the consequence, of course, of being too cautious, particularly in an area like this, is that the conduct goes unpunished.

GLEESON CJ: Mr Solicitor, I just want to be sure I have the facts straight in one small respect. It occurs to me that on the issue of reasonable and probable cause, both Mr Jackson in relation to D and you in relation to C have a particular problem because, as I understand it, the interviews with the children were videotaped and, as I understand it, the trial judge saw the videotapes and used his observation of the videotapes in his conclusions about reasonable and probable cause, in one respect a conclusion adverse to Mr Jackson’s client and in another respect a conclusion favourable to his client. I am not suggesting for a moment that we ought to see them, but neither the Court of Appeal nor this Court has had that opportunity, is that right?

MR SEXTON: I do not think they were shown in the Court of Appeal, your Honour. I am told not.

GLEESON CJ: Did the judge see them?

CALLINAN J: I think he did because he made some comments about them in his judgment about how one of the children looked directly at the interviewer.

MR SEXTON: I am not sure what reliance though that he - - -

CALLINAN J: I know there was some reliance because I can remember reliance for that reason.

MR SEXTON: In the case of C, for example, I do not think that he made a finding, for example, that because of his observations at the interview that C’s - - -

GLEESON CJ: Where did Justice Beazley deal with the issue of reasonable and probable cause in relation to C?

MR SEXTON: I think it starts at page 1904, your Honour, of volume 5. It deals with what the trial judge says. It is 168 perhaps at the top of page 1907. It is paragraph 170 of the judgment at the bottom of 1907 and over onto 1908 where she comes to a conclusion.

GLEESON CJ: That is very much an objective conclusion, is it not?

MR SEXTON: Yes.

GLEESON CJ: You have already criticised the trial judge’s findings or lack of findings in relation to the subjective belief of the police constable in relation to this matter, but Justice Beazley, as I understand it, looks at the factors and says:

a prosecutor, exercising proper caution, would be justified in laying the charge against C.

HAYNE J: The premise for that is her Honour’s assertion that any evidence relating to the charge is viewed as a whole, but did that include viewing the videos?

MR SEXTON: Not in the Court of Appeal’s case. I do not think that the trial judge relied particularly on the way in which the child made the allegations. I think he relied on lack of consistency as between the interviews and factors of that kind so I am not sure that if we are – we answer your Honour the Chief Justice’s question short and - we would say we are not precluded from canvassing that finding by the trial judge and I have been through the material in relation to C. We say, particularly given the link between the cases and the materials to which I have referred, that we would say Justice Beazley was right in her conclusion.

CRENNAN J: Mr Sexton, this highlights a difference between the test in Brain’s Case and Justice Beazley’s test which is set out at paragraph 160, 1904, the last five lines. Mr Jackson, as I recollect it, pointed out that what has been left out in that statement of the test is the subjective element in the Brain Case test, that is, the reference to the prosecutor’s belief in the probability of guilt. I know you have said in your written submissions that the test in Brain is to be preferred to the test in Mitchell, but in relation to Justice Hayne’s cri de coeur before, “Where are we going?”, are you saying that Justice Beazley’s test, which is different from the test in Brain’s Case, is one that should be upheld?

MR SEXTON: We think it, and some of the other tests that I referred to yesterday, are preferable to a test which includes Justice Dixon’s test which refers to “belief in guilt” because of the problems that are caused by the word “guilt”.

CRENNAN J: Although this does not completely remove subjective elements, it very much dilutes them. It is not so much a belief in guilt. It is much closer to there being a prima facie case, as that term is used by the DPP and the police from time to time.

MR SEXTON: We do not dispute, your Honour, that there is a subjective element, as your Honour appreciates, but I think the term that Justice Hayne used is the prosecutor honestly believed that the charge should proceed. It is more general than the way it is put, for example, by Justice Dixon and certainly by Chief Justice Jordan.

GLEESON CJ: But a small problem that we have is that there is no finding either by Judge Cooper or by the Court of Appeal as to the prosecutor’s belief in relation to C.

MR SEXTON: That is why I took your Honour to what he said about – he puts it in terms of both children – his belief in the allegations and generally, he said that evidence where he thought the charges ought to proceed. We would say that there is certainly evidence on that question.

GLEESON CJ: Let us suppose that we were to come to the conclusion that a finding about subjective belief is an essential part of whatever is the proper test. Do we have to remit this matter? I mean, Judge Cooper made this alternative finding and the Court of Appeal dealt with the matter objectively in paragraph 170. So where does that leave us if you have to in a case like this make a finding about subjective belief?

MR SEXTON: We would say that the Court could do that. Except for the videos, it is able to assess the evidence in the same way that the trial judge in the Court of Appeal could, if it comes to that, your Honour.

GLEESON CJ: The trial judge seems to have actually baulked at making an unequivocal finding that the prosecutor did not believe in the existence of a prima facie case in relation to C.

MR SEXTON: Yes, he seems to have put it on the objective basis.

GLEESON CJ: Well, now, you still have to deal with issues of malice, I think.

MR SEXTON: Yes, I am just going to come to that now, your Honour. I will do that. Can I just say that in relation to – and it is something that Justice Hayne raised – the question of mixed motives, put it that way, we have referred in our written submissions to a decision of this Court in Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147, where the only member of the Court who really considered the question was Justice Kitto who said at 162 that the party alleging malice must establish that the prosecutor’s conduct “was actuated solely or predominantly by a wrong or indirect motive”. We would say that that is the correct approach.

Another area of the law where malice can be alleged is of course the law of libel where I think it is in Horrocks v Lowe, Lord Diplock’s judgment in the House of Lords, where he says that it is a question that the dominant motive is the one to be taken into account.

CALLINAN J: Has that aspect of Horrocks v Lowe in defamation always been applied in Australia? I just have an idea that there may be a somewhat lesser standard applied in Australia. I am not sure.

MR SEXTON: There is a decision of this Court relatively recently which looks at the questions of malice generally, but I think on the question of dominant motive, I am not sure that any Australian decision has considered that, your Honour.

CALLINAN J: In any event, you have a case that is directly in point that has nothing to do with defamation.

MR SEXTON: Justice Kitto’s view, but the other Judges in that case did not have to consider the question.

CALLINAN J: But you do not have to worry about the test for defamation in this case.

MR SEXTON: No. In terms of the evidence in relation to malice, as your Honours appreciate, the trial judge relied on the two conversations with Mr Walsh. The Court of Appeal referred to the fact that he had also said to Mr Walsh that he had been advised by his superiors that if he had a prima facie case then he had to leave it up to the court and that they did not make the finding of improper purpose.

There is a quote in the trial judge’s judgment at volume 5 of the appeal book at 1793 from evidence that the police officer had given in the committal proceedings where he said:

“I would not charge someone because somebody told me to, okay. The only thing I can say is this, is that I spent hours upon hours on reading transcripts and trying to figure out what the situation is here, or trying to establish is there a case.

We would rely on the findings that the Court of Appeal made in relation to malice and say that notwithstanding the conversations with Mr Walsh, on the totality of the evidence it is clear that the police officer did give lengthy consideration to whether the charges should be brought in this case and that ultimately he made the decision on his own and, indeed, he did not seem to enjoy having to make it on his own but that ultimately he did make it and that he not only, we would say, had reasonable and probable cause but that there was no improper purpose in relation to that decision.

GLEESON CJ: Sometimes - and I have in mind particularly cases about decisions of boards of company directors - where there are multiple purposes you look for a dominant purpose, but sometimes there may be one of a number of purposes which is described as infecting the others - and I have in mind in particular a case like Howard Smith Ltd v Ampol Petroleum Limited - sometimes if directors act from a particular bad purpose the fact that they have a number of proper purposes will not assist if the kind of improper purpose is one that infects the others. Is that area of law relevant in this context?

MR SEXTON: We would say not, your Honour, but we doubt that this is a case about dominant purpose or mixed motives in the sense that we would say that the police officer’s evidence was pretty clearly that he was not influenced by any considerations apart from whether or not the charges ought to be brought. The example that your Honour gives, it is possible in a different sort of a case that it may have some application.

GLEESON CJ: You would need the detachment of an anchorite in a case like this not to be aware of the implications of action or inaction.

MR SEXTON: Well, he was aware, but the evidence that he gave was that there was some pressure to move the matter along, I think that is clear, but it was to be done on the basis that it was his decision and a question of whether it should go before a court or not. I am not sure that there is evidence of direct pressure in this case, your Honour.

HAYNE J: What do you make of his statement, “I wouldn’t have charged him”?

MR SEXTON: Well, it was made at a stage when, in effect, the committal proceedings had collapsed.

HAYNE J: Does the trial judge do other than treat that as revealing not only what he then thought, but what he had thought at the time of preferring the charge?

MR SEXTON: Well, your Honour, in the context of his other evidence it may well indicate, we would say, a personal disinclination to bring the charges. It was something that he found difficult and unattractive here, but that ultimately he felt that he ought to do and he had to do, which is why he did it. This was a conversation where he was trying to be sympathetic to Mr Walsh and to his client and he certainly, on many occasions, said that he thought the charges ought to be brought.

HAYNE J: We are all familiar with Spenlow and Jorkins in Copperfield, Mr Solicitor.

MR SEXTON: Your Honour, the evidence is that he did spend a considerable amount of time on it. It would not have been an easy decision.

CALLINAN J: I have a great deal of sympathy for him in some ways. He was heavily pressed. I think his wife was ill. His mother was ill. He was under pressure at work and there was rather a suggestion that the section he was in was understaffed. All of those things seemed to be present but New South Wales is a defendant as well as the second respondent and those conditions were created – some of those conditions, overwork and pressure, were created by other State offices.

MR SEXTON: I do not imagine it is an unusual situation, your Honour.

CALLINAN J: No, I do not imagine it is. That is why, perhaps, the State – it may not be an ultimate injustice if the State had to pay.

MR SEXTON: Your Honour, the consequences of putting the test too high in this area – I do not have to explain what the consequences would be.

CALLINAN J: I agree. It is a very difficult case, I think, Mr Solicitor.

MR SEXTON: Can I just say one final thing, your Honour, in relation to the videos? The trial judge makes reference to viewing the video in relation to C at page 1722, in volume 5, paragraph 41 of his judgment. I am told it was not shown in court, your Honour, but the video was tendered in evidence. Unless there are any other matters, your Honours - - -

GUMMOW J: What about D?

MR SEXTON: He did not see that video. He does not refer to it and it was not shown in court. It was tendered, your Honour.

GUMMOW J: It was tendered?

MR SEXTON: It was tendered.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Jackson.

MR JACKSON: Your Honour, I am told that the video in relation to D was seen as also a video in relation to the search warrant at the trial.

KIRBY J: Seen by whom?

MR JACKSON: Seen by the judge. Your Honours, there are a number of matters I wish to deal with, but may I deal first with the submissions made by our learned friends on the facts concerning reasonable and probable cause? May I start by saying this, your Honours. The arguments of the respondents do two things. The first is they leave out of account the analysis of the facts by the primary judge, to which I will come in just a moment, and the second thing is that they rather assume, in their favour, findings which are not made at all and which seem to underlie the submissions.

May I deal with those two aspects. I do not intend to go into the detail of it, your Honours, but may I indicate the relevant parts of the primary judge’s reasons where he deals with these subjects. First, they are in two groups, your Honours. The first consists of some passages in his reasons for judgment where principally he refers to the evidence of a witness and then makes some comments about it. I am going to refer your Honours to the comments parts as well some other comments he made.

The second part is to give your Honours the reference to where he engages in a lengthy analysis of the reasons of the respondent for charging the appellant, and may I go to indicate where your Honours will see those passages. They are all in volume 5. They commence at page 1714 where your Honours will see he makes some general observations in paragraphs 6 through to 12.

He refers in particular in paragraph 6 to fairness giving way to zealotry and so on. Your Honours, that goes through to paragraph 12 and you will see in paragraph 8 references to:

Inadequate attempts were made to investigate from independent sources the likelihood of the abuse having been committed.

As I said, your Honours, it goes through to paragraph 12. Could I come then to the second reference, and that may be seen at page 1729 and your Honours will see in paragraph 90 there is a reference to some evidence given by the second respondent and one sees in the last two questions and answers in that paragraph at page 1730 statements which are parts of the evidence of the second respondent which, in the light of the findings of the primary judge, cannot have been accepted by him.

GLEESON CJ: But what was the primary judge’s finding about belief?

MR JACKSON: Well, the primary judge’s finding as to belief was this, your Honours. He makes, in a sense, I suppose three findings. One finding is the finding which in part deals with the question of what took place in the conversations that he had with Mr Walsh and they indicate, in our submission, that there was not a belief that the charges were ones which could be sustained, I will put it loosely for the moment. Now, it is a question, of course, whether that goes further than that. I will come to that in a moment.

The second thing, your Honours, is that he makes a finding in respect of D not that he believes the second respondent had the belief but that we had not established that he did not have it. So he does not make the positive finding in relation to belief. What he does do then in relation to C is that he makes a finding that we have shown that he did not have the belief.

GLEESON CJ: Look at paragraph 392. He says he did not believe it or “if he did believe it”. What is he finding about belief?

MR JACKSON: What he is finding, your Honour – I will accept that it might have been put differently, but what he is simply saying really is, “I am satisfied that he did not believe that he’d committed the offence”. He is saying then, “I also believe that if that be wrong, then in any event that belief wasn’t based on reasonable grounds”.

GLEESON CJ: This is a pretty awkward topic because Detective Constable Floros, like everybody else around here, is entitled to natural justice and he is entitled to know whether or not the trial judge found that he launched this prosecution not believing that the plaintiff had committed an offence against C and the trial judge says, “I am satisfied either that he didn’t believe it or that if he did believe it, his belief was unreasonable”.

MR JACKSON: Well, your Honour, with respect, he does not use the word “either”. I appreciate he used the word “alternatively”, but it is not an unusual although perhaps not the best choice, examined two courts further up, of words to say “alternatively”. What he is conveying is that he did not believe that the plaintiff had committed the offence.

GLEESON CJ: Well, you seem to read that as though “alternatively” means additionally.

MR JACKSON: Yes. Your Honour, he is saying, “I’m satisfied on two grounds”.

KIRBY J: I do not really see a problem with that myself because it is not, I would have thought, uncommon in reasoning, given that you are not just getting an answer from a jury – you are getting a reasoned opinion from a judge – for the judge to say, “I don’t myself believe it but I’m a judge. I realise that I can’t see into the mind of the person and therefore I say, even if I’m wrong on that, I don’t think he had reasonable and probable cause or I don’t think he had reasonable grounds”.

MR JACKSON: Well, your Honour, that is the submission I am making about it, with respect, and also one has to bear in mind that because you have the functions of jury and judge merging in the one person and there is a possibility of appeal, he has to decide two issues and in relation to the two issues there may be appeals.

HAYNE J: What does his Honour mean in the immediately preceding paragraph? Does that cast light on what he means in paragraph 392?

GUMMOW J: And 390 as well, 390 and 391.

MR JACKSON: Yes, it does, your Honour. What is being said at 390 seems to go to the absence of reasonable grounds. Paragraph 391, your Honour, seems to relate to the question of belief. So he is really dealing with two aspects of the matter. Your Honour, I do not think I can advance that part of it further but that is what is occurring, in our submission.

May your Honours go back for a moment to what I was seeking to do before. I was at paragraph 90 on page 1729 and what I was seeking to say, your Honours, was that in the light of the finding that was made by the primary judge, the last two answers at page 1730, that evidence could not have been accepted by the primary judge. May I go then, your Honours, to page 1741, paragraphs 148 to 153. This is the first of the occasions when the judge, having recited the evidence in relation to a particular witness or particular child, goes on to deal with it. Your Honours will see that he refers to matters arising from those interviews and discusses those. Similarly, your Honours, at paragraph 215, page 1756, deals with the matters arising from the interviews with C.

He then, your Honours, at paragraph 233 on page 1760, deals with the matters arising from the interviews with the elder sister. Similarly, your Honours, at paragraph 262 on page 1766 with the position arising from the interviews with the mother, and then at page 1768, and finally, at paragraphs 273 to 276 with matters arising from the interview with the appellant.

Now, your Honours, could I just say that there is then an analysis which goes on for a considerable part of the judge’s judgment of the appropriateness and weight to be attributed to the second respondent’s reasons for charging the appellant. That appears in the passage at page 1771, paragraphs 299 through to 354. The judge deals very fully with these aspects of the matter and then goes on – and this is perhaps of some significance – at paragraph 355, page 1784, having referred in the preceding paragraph, 354, to whether he believed what the boys had said in their statements, then goes on to say in 355:

Crucial to the plaintiff’s case in establishing the elements of malicious prosecution are the contents of the conversations between Detective Constable Floros and his solicitor, Mr. Walsh.

Now, your Honours, it is in that context that one finds the statements which are made at paragraphs 375 and 376 at page 1795. Now, your Honours will see in paragraph 375 that what is put there is, in the first sentence, sufficient to determine which version of the conversation should be accepted. However, what one sees then in the next paragraph, in paragraph 376, is that the judge goes on again to say that he found the second respondent’s evidence “singularly unimpressive and unreliable”. He speaks, of course, of the conversations, but there is nothing to indicate that he is not expressing that as a relatively general view.

Your Honours, what is absent is any affirmative finding that he accepted the second respondent’s evidence that he did believe that the appellant was guilty of the offences. The closest one gets is the passage at paragraph 384 where it was found we had failed to satisfy the burden of proof in respect of D, but that is as far as it goes in the first place. The second thing we say about that – and I will not go back over the submissions I made yesterday – what that does involve is, in our submission, a misapprehension, with respect, of the effect of the finding that he had made about the statements made by the second respondent in the conversations with Mr Walsh.

Your Honours, could I say in relation to that aspect that a question was raised yesterday and also today about when those statements were made and to what they related. May we say two things about that. The first is that it is obvious, we would submit, from the finding made by the judge about the purposes involved that he was dealing with the view or treating those statements as made relating to the view of the second respondent when he laid the charges.

The second thing is that the statement about the matter not going past the committal, which you will see referred to in paragraph 359 at page 1786 at line 40, those statements were made in April 2001. He says, “I told your bloke to do a 48E”. He is referring to telling him in April 2001. That that is so appears from paragraph 360 and that is only a few weeks after the laying of the charge.

Your Honours, a question was asked yesterday: was the allegation of pressure actually put to the second respondent? The answer is yes. It was done at various places. Could I give your Honours two references particularly. They are both in volume 2. One is page 621. It is a passage that goes from about line 20 through to 622, about line 20. The second is at page 629, again in volume 2, about line 40.

GLEESON CJ: Mr Jackson, the primary judge decided the issue of malice first and then he went on to the issue of reasonable and probable cause. In your submission, does it matter, or should one issue be dealt with before the other?

MR JACKSON: It probably matters if there is a jury, your Honour. It does not matter really in the case of a trial judge hearing the case sitting alone but in the past some judges have expressed the view that the issue of malice, aspects of which would go to the jury, of course, should first be put to the jury because if that happens they will automatically find to the extent to which there is an issue before them an absence of belief. That does not really matter in the case of a judge.

CALLINAN J: Mr Jackson, there is a question I wanted to ask you. In Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214 this Court said, in discussing the question whether a case should be taken by a judge from the jury, a criminal case:

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.

Now, where does that leave a police officer who is weighing up whether to bring a charge or not? Does it have any relevance? Is the coherence of the law affected or in jeopardy in any way in not applying a similar test to a police officer?

MR JACKSON: Well, your Honour, one is looking of course at different things and the observation that is made in that case relates to a circumstance where there has been a trial and the Crown case is concluded. Now, the Crown case is one which, as one knows, will contain evidence, some of which has been challenged, some of which has not been challenged. There will be witnesses whose credit may or may not appeal to the judge, but one does have a situation where if at the end of the day the situation is arrived at in the passage your Honour quoted - - -

CALLINAN J: But it is not really put on that basis. It is looking at the evidence, and I appreciate that is evidence in cross-examination as well. The police officer does not even have the advantage of having seen that evidence tested, so assume for present purposes that the evidence that the police officer has is capable of sustaining a conviction, but maybe, as perhaps here, inherently vague or weak or tenuous.

MR JACKSON: Well, your Honour, what I was just going to say in relation to that was that the task that is performed by the judge at a trial is one which is judicial in nature. Now, the reality of matters is that the determination whether the case will proceed thereafter in those circumstances is one made really by the person prosecuting, and of course one knows that there are circumstances where the judge may give an indication to the prosecutor that this is a case where, if the matter does go to the jury, the judge will have to indicate to the jury – give them indications that are likely to result in an acquittal, to put it shortly. But the determination in circumstances of that kind is one for the Executive Government. So too is the issue that is being discussed here.

Now, your Honours, insofar as the determination whether to charge arises in a number of – charge or pursue the charge, because malicious prosecution can go to maintaining proceedings as well, the decision is an executive decision whether to institute – if it only turns – I am sorry. The decision is an executive decision that is clear at the time of, in summary proceedings or indictable proceedings, instituting them and in the case of indictable proceedings, doing it in two courts really, and whether to proceed with it is an executive decision. That does not turn only on the existence of a case which is a prima facie case in the sense that appears in the quotation.

That is why, your Honours, it is not just a question of saying there is a prima facie case, therefore, this should go ahead and that is why, your Honours, one sees in the quotation from Sharp and Brain that the test has really the two elements. One is, is there a case in which there is a belief that the accused person would be found guilty on that evidence, or could be found guilty, I suppose, and on the other hand, is it a case where the interests of – I have not got the words quite right – merit the proceeding being brought? So, your Honour, it is a different thing.

CALLINAN J: I am sorry, you may not be able to answer this, but do the guidelines, the DPP guidelines, accommodate or deal with any similar proposition to what is said in Doney?

MR JACKSON: They do, your Honour. What they do say is, to put it shortly, you have to have a prima facie case of course, but the fact that you have it is not the only criterion to be applied. Then it goes on to deal with matters that may be taken into account and matters that should not be taken into account.

CALLINAN J: I have often wondered whether what was said in Doney’s Case may have caused perhaps some imprudent prosecutions to be brought. I am not saying that that is so but I wondered whether it is so.

MR JACKSON: Yes.

GLEESON CJ: What was said in Doney was an insistence upon the distinctive and separate functions of the executive and judicial branches of government. As Lord Hailsham said in a case in England, if prosecutions can be stopped because judges think they should not have been brought, the idea will very quickly get around that prosecutions all enjoy the approval of the judge.

MR JACKSON: Yes.

CALLINAN J: That may be so, with all due respect, but there may be a lot of time and a lot of money spent and not the priorities given that should have been given on the basis of what was said in Doney. It is a possibility, I think.

MR JACKSON: Yes, your Honour. I know distinctions have been drawn between intimations and strong intimations to the jury sometimes.

GLEESON CJ: I think the DPP guidelines say, do they not, a prima facie case is a necessary but not a sufficient reason for starting a prosecution? They then give a long list of reasons why the exercise of the prosecutorial discretion, which is a function of the Executive Government, might result in no laying of charges.

MR JACKSON: Well, your Honour, that is why I was seeking to, in response to Justice Callinan, say that one was dealing with the functions of different elements of the polity.

GLEESON CJ: In addition, in between the prosecutor’s decision to lay the charge and the trial judge’s exercise of whatever are the trial judge’s proper functions, there is a magistrate who has a series of filters to apply, one of which used to be – I do not know whether it still is – there is a sufficient likelihood that a jury will convict.

CALLINAN J: It is only in New South Wales, is it not? There is a special provision, is there not, in New South Wales, in the Justices Act?

MR JACKSON: Your Honour, these things have varied a little from time to time in various jurisdictions and I could not give your Honours an answer immediately on the other jurisdictions, but the point I am seeking to make is that one is talking presently in the area of executive activity, and I do not think I can take that further, your Honours.

Your Honours, could I deal with another matter? The question of looking into the face of the interviewer was referred to. Your Honours have seen a passage in the primary judge’s reasons that deal with that. The judge referred to the fact that C had a hearing problem and if the interviewer did not look at him, he misunderstood what was said. That appears in volume 1, page 413, line 42, going over to page 414, line 33. So, your Honours, perhaps not a lot can be taken really from that.

Your Honours, a notion also that the second respondent was reliant on the boys’ demeanour, a matter about which the trial judge said nothing, is rather undermined by the evidence-in-chief of the second respondent that he could not recall any change in C’s demeanour between the first interview, where there was no allegation of assault, and the second interview, where he made multiple allegations. Your Honours will see that evidence at volume 1, page 421, lines 22 to 39.

Your Honours, the respondent’s submissions, both orally and in writing – the written ones can be seen in paragraphs 19 and 20 of their submissions – suggest some reasons why it is inappropriate for a prosecutor to have to form a belief, the prosecutor in the position of the second respondent. Could we say, your Honours, that those arguments tend to be based on things that might happen after the charge is laid. We elaborate on this in our reply submissions at paragraph 25. The belief of the prosecutor should be measured at the time of laying the charges and, your Honours, there seems no case that we have been able to find where there has been a malicious prosecution case which has succeeded because of matters which occurred after the laying of the charge and which might vitiate the view of the prosecutor held at the time.

Your Honours, on that issue too, one sees raised in the respondent’s written submissions at paragraph 21 that expression which tends to grow a little and mature sometimes, “profound chilling effect” if there was a change – “chilling effect on the bringing of prosecutions”. But could we just say that the position since Mitchell v John Heine, at least, has been around for nearly 70 years and there has not been a – the atmosphere so far as malicious prosecution does not seem to have become particularly arctic so far as prosecutors are concerned.

May I say a couple of things finally, your Honours. Reference was made to the position of a possible similarity between the position of a prosecutor and that of a barrister. There may be a similarity sometimes but the person here who laid the charge was the person who carried out the investigation.

I said yesterday there were some matters that we would give your Honours a list of what might have been done. Could I just do so now. May I say that because the list has a couple of pages, if our learned friends wish to make any written submission about it in response, we have no objection.

GLEESON CJ: Perhaps one of the reasons why everybody agrees that the issue of reasonable and probable cause is a matter of law, not a matter of fact, is that in some cases the question would turn upon admissibility of evidence.

MR JACKSON: Quite, your Honour. May I say, with respect, that in a sense it is a matter for the judge as distinct from being in every case a matter of law. I mean the ultimate legal conclusion of course.

GLEESON CJ: What level of knowledge of the rules of evidence do we attribute to somebody like Senior Constable Floros when it comes to deciding whether or not to put him up on a charge in relation to D only or a charge in relation to D and C?

MR JACKSON: Your Honour, you would expect him to have the level of knowledge that a person who is put in charge of conducting a prosecution on an offence of this kind, or offences of this kind, would be expected to have. Now, that does not mean he has to be familiar with every part of the Evidence Act, but you would expect a police officer to have a basic familiarity with the fundamental rules of evidence.

HAYNE J: In particular, in the objective test, the objective element of the test, there may be occasion where you say that not having sought advice is the deficiency in the objective sufficiency of that which was done.

MR JACKSON: Yes, your Honour, there is a variety of circumstances that can arise, but a basic familiarity. I mean, your Honour, one would expect police officers for many, many years to have had a basic familiarity of them. Some in lesser days had rather too much familiarity with them. Your Honours, could I also say the Children’s Court was mentioned. The judge’s finding on this issue is in paragraphs 301 to 303 at page 1771 and there was some evidence about the Children’s Court from the second respondent’s evidence-in-chief in volume 1, page 435, line 31 through to page 436, line 15.

GLEESON CJ: I have to admit, Mr Jackson, that I do not know what sort of thing goes on in the Children’s Court in relation to admissibility of evidence, but does it include, for example, reports of psychologists or people who volunteer, or venture, I should say, opinions about whether somebody has been abused?

MR JACKSON: Well, your Honour, I am not able to give you evidence of the practice there. However, your Honours will see in the relevant Act, the Children (Care and Protection) Act 1987, the terms of section 70(1) of that Act provide that:

Proceedings under this Part shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit . . .

(3) In any proceedings under this Part, the Children’s Court is not bound by the rules of evidence but may, subject to section 71, consider any statement, document, information or matter that may, in its opinion, assist it in relation to the proceedings, whether or not –

to put it shortly, that would be otherwise admissible in evidence. Section 71(1) deals with:

Any statement or information made or given to a member of the police force by a child to whom any proceedings under this Part relate shall not be admitted in evidence –

unless there are certain safeguards at the time they are made, in relation to persons being present and – or sufficient reasons for that not taking place. Then 71(2) -

Subsection (1) does not apply in any proceedings on a care application that alleges that a child is in need of care . . .

(b) because the child is being, or is likely to be, abused.

Your Honours, it is made clear by section 71A that the Children’s Court jurisdiction is not relevantly affected by the existence of any criminal proceedings which might involve or relate to the child. I can give your Honours the relevant parts of the Act.

GLEESON CJ: Subject to what actually appears in the Act, we just have to proceed, I presume, upon the basis that we do not know what goes on in the Children’s Court in relation to care applications. I certainly do not know what goes on because I have never appeared in such an application.

MR JACKSON: Your Honour, the court, one should assume, no doubt, follows out what is provided for by its statute.

GLEESON CJ: I am just wondering whether they take evidence of opinions by people about whether children have been abused, evidence of a kind that would not be admissible in a criminal trial.

MR JACKSON: I cannot give your Honour an immediate answer. I suspect they would necessarily do so but that is the - - -

GLEESON CJ: It does not strike me as a fanciful possibility.

MR JACKSON: Not at all, your Honour. One has to bear in mind of course that some of the children would be ones so young as to be incapable really of expressing a view.

KIRBY J: There was some discussion of Children’s Court procedures in a case called J v Lieschke, which was decided one way in the Court of Appeal of New South Wales and then reversed in this Court, but that of course only speaks of the procedures as at that time, which I think was about 1990.

MR JACKSON: Yes. May I deal with three other matters, and I will do so very briefly. The first concerns a question I was asked dealing with Senior Constable Parrish. He was the custody manager behind the counter at Camden police station at the time of the charge being laid. That appears in volume 1, page 80, line 25 going through to page 81, line 57. He is the person, as your Honours are aware, thus referred to as the person accepting the charge on the bench copy of the document at page 796 in volume 2. That is the first matter, your Honours.

The second matter concerns the trip to Canberra. Your Honours, I will not go through the detail of it. If your Honours look at the references I have given to the primary judge’s reasons already and to the exhibits that are relied on by my learned friend, one can see that they are perfectly explicable on the basis that there was a trip in which he actually went in the car with his father, came to a number of interesting places in Canberra, including here, and he wrote a report about what he had done in Canberra afterwards. Your Honours will also see, in terms of the weight that might be attributed to it, in the evidence of the second respondent in volume 1 at page 521 he did nothing further about referring the matter on to anyone in the ACT police.

Your Honours, the third matter is this. In relation to malice, the question of the necessary predominance of the motive does not, in our submission, really arise in this case because it seems clear, your Honours, with respect, if one adds together two matters, one the finding of the judge as to the actual motivation in instituting the charges and as to the fact that there was evidence that he himself did not believe that the charges were ones that should have been brought,.....left to him, there is really no other relevant motive.

The second point about it, your Honours, is – could I give your Honours a reference to what was said in Glinski v McIver [1962] AC 776. It is a passage at the bottom of page 776 which I gave your Honours earlier where it is said by Lord Devlin:

I do not see why any less should be demanded of a police officer. Although he may be more exposed to attack from persons he has mistakenly prosecuted, he should not stand in need of as high a degree of protection as the private individual, for there can be no occasion on which in his case a mixture of motives could be accepted as excusable.

KIRBY J: What page was that?

MR JACKSON: That is at the bottom of page 776, your Honour, and the top of page 777. While your Honours have that case, could I also refer to page 754 to a passage in Lord Radcliffe’s speech in the second new paragraph on the page. Your Honours will see in that second new paragraph about four lines down:

has a duty to lean towards protecting a prosecutor, ex hypothesi unsuccessful and malicious, from the possible injudiciousness of a jury. If there really is some evidence founded on speech, letters or conduct that supports the case that the prosecutor did not believe in his own charge, the plaintiff is, in my view, entitled as of right to have the jury’s finding upon it.

GLEESON CJ: That reference to a mixture of motives involves an assumption that something is actually a motive for taking the action. There must be many cases where police officers get considerable personal satisfaction out of having to perform their melancholy duty. That would not mean that their personal satisfaction was a motive for their action.

MR JACKSON: No, it may in some case be a result of doing it, but personal satisfaction may sometimes amount to an improper motive.

GLEESON CJ: It has to be a motive first of all.

MR JACKSON: Yes, and that is really what one sees in Glinski v McIver where there was a finding of malice not set aside. The improper motive was, I think, because the police officer was unhappy about the plaintiff having given evidence in some other case which got someone else out and so “I will get you” in effect. That was held to be an improper motive. What
I was going to say was, your Honour, the passage I was just referring to, at page 754, really, where he uses the expression “the prosecutor did not believe in his own charge” in a sense encapsulates the nature of the belief, particularly if one looks at the bottom of page 753 where Lord Radcliffe says:

the ultimate question is not so much whether there is reasonable or probable cause in fact as whether the prosecutor, in launching his charge, was motivated by what presented itself to him as a reasonable and probable cause.

Then the next sentence as well. I am sorry, your Honours, to go on for a moment, but perhaps I should just say one further thing and it arises in relation to the question of regularity, as it were, that the Children’s Court proceedings and laying the charges. In Gibbs v Rea [1998] UKPC 3; [1998] AC 786 one of the matters that was raised was that the issue of the search warrant should have been treated as properly done because they had been issued by a judge. Your Honours will see that dealt with at page 798 in a passage which is between C and D where it is said:

A presumption of regularity in the issuing judge’s consideration of the applications cannot extend to matters which preceded the applications.

Your Honours will see the remainder of that paragraph. Your Honours, I do not suggest that is directly relevant but it is analogous to the position at least in the Children’s Court. Your Honours, those are our submissions.

MR SEXTON: Your Honours, I wonder if we might have seven days to respond to my learned friend’s last document if we wish to do so.

GLEESON CJ: Yes, certainly, Mr Solicitor. We will reserve our decision in this matter and we will adjourn to Court No 2 to reconstitute.

AT 11.49 AM THE MATTER WAS ADJOURNED