Malicious Prosecution in the High Court: Beckett v State of New South Wales

In Beckett v State of NSW the High Court has declared that in an action for malicious prosecution, the element of the cause of action that requires the criminal proceedings against the plaintiff to have terminated in their favour is satisfied where the DPP has exercised the power to direct that there be no further proceedings.

Despite what the newspapers triumphantly pronounced, this was not a case about whether or not Beckett was entitled to sue the State of NSW for malicious prosecution.  She did not “win the right” to sue.  It dealt with a very narrow issue about the effect of the DPP’s direction under section 7(2)(b) of the Director of Public Prosecutions Act 1986.  Importantly for Beckett, it decided that she did not need to positively establish that she was innocent of the crimes with which she had been charged.

The issue arose in this way.  Beckett was charged with a number of offences against her husband.  She was committed to stand trial, a bill of indictment was found and she was arraigned upon it.  She was found guilty of a number of the charges and sentenced to more than 12 years imprisonment.  She appealed unsuccessfully against her convictions and sentence to the NSW Court of Criminal Appeal.  She petitioned the governor for a review of her conviction, the result of which was that the NSW Court of criminal Appeal quashed a number of the convictions and ordered a new trial in respect of some of the counts.  The DPP then directed that there be no further proceedings (it is important to note that is undoubtedly because by the time the Court of Criminal Appeal had quashed the convictions and ordered a new trial, the plaintiff had already served the bulk of her sentence).

The plaintiff then commenced proceedings in the NSW Supreme Court for malicious prosecution.  The State of NSW asserted that the plaintiff had to establish her innocence of the charges in order to succeed.  This was based upon the outcome of the High Court decision in Davis v Gell (1924) 35 CLR 275 in which the High Court held that where criminal proceedings are terminated by the entry of nolle prosequi the plaintiff is nonetheless required to prove their innocence.  A subsequent decision of the High Court in Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 narrowly confined the holding in Davis.  In Smith the criminal proceedings came to an end by the decision of the Attorney-General not to file an indictment.  The Court held that the guilt or innocence of the plaintiff is not an issue going to the cause of action for malicious prosecution.  However, they carved out of this general statement the case of nolle prosequi such as in Davis.  The position of criminal proceedings terminated by nolle prosequi was rightly to be regarded as anomalous, but it remained binding nonetheless.

The issue that squarely arose in the Supreme Court was whether the direction by the DPP that there be no further proceedings was equivalent to the entry of nolle prosequi by the Attorney-General.  The Supreme Court and the Court of Appeal held that it was, with the consequence that if Davis remained good law, then Beckett would have to establish her innocence at any trial of her malicious prosecution claim.

On appeal to the High Court, the Court held that a plaintiff needs to establish that the criminal proceedings terminated in their favour, but did not need to establish their innocence.  The Court agreed with the NSW Court of Appeal that the direction by the DPP was equivalent to the entry of nolle prosequi and was sufficient to establish that the criminal proceedings had terminated in the plaintiff’s favour.

Some comments should be made about the High Court’s reasoning. 

There are some statements made in the judgments to the effect that guilt or innocence of the plaintiff is not an issue in a cause of action for malicious prosecution.  That may be accepted, but only in a narrow sense.  It is true in the sense that a plaintiff does not need to prove innocence.  But if a plaintiff remains convicted of an offence then the proceedings have not terminated in their favour, and accordingly guilt remain relevant in that sense.

However, it may also remain relevant in an evidentiary sense as well.  Take, for example, a malicious prosecution case that will be heard in the NSW district Court next week.  In that case the DPP issued a direction that there be no further proceedings, and accordingly the proceedings terminated favourably to the plaintiff, and she is not required to prove her innocence.  However in the civil proceedings she has sued not only the State of NSW but the complainants whose statements brought about the charges in the first place.  In order to succeed the plaintiff must also prove an absence of reasonable and probable cause, and that the prosecution was brought about maliciously.  To the extent those two elements of the cause of action are directed against the complainants, it remains open to those defendants to prove that the plaintiff in fact committed the offences for which she was charged, in order to firstly establish reasonable and probable cause and secondly to rebut any inference of malice.

More fundamentally, the supposed justification for the element of the cause of action that requires proceedings to have terminated favourably for the plaintiff does not support the outcome arrived at in this case (or indeed much of the other caselaw in relation to favourable termination.  That justification is described as being “the concern of the law with the consistency of judicial determinations, a concern that is distinct from proof of actual innocence or guilt: a plaintiff who is wrongfully convicted of an offence cannot maintain an action for malicious prosecution notwithstanding that he or she may possess irrefutable proof of innocence.”  But that concern of consistency of judicial determinations is not achieved by a rule that allows anything short of acquittal as satisfying the favourable termination element.  Unless the termination of proceedings is such as to foreclose the possibility of subsequent prosecution, there always remains the possibility of a successful claim for malicious prosecution being followed by a successful prosecution for the crime. A direction under section 7 of the section 7(2)(b) of the Director of Public Prosecutions Act 1986, like the entry of nolle prosequi, does not prevent the recommencement of criminal proceedings, and so the possibility of inconsistent outcomes remains.

One undesirable consequence of this rule, returning now to the facts of Beckett’s case, is this.  The decision not to retry Beckett was undoubtedly made having regard to the fact she had already effectively served her time.  It would be unfortunate for decisions as to whether to retry an accused came to be influenced by the consideration that the State would then be left exposed to a claim for malicious prosecution. What purpose does it serve to encourage prosecuting authorities to retry an accused simply to establish their guilt, in order to foreclose a civil claim, in circumstances where further punishment is unlikely.

Causation in failure to warn cases

Yesterday the High Court delivered judgment in Wallace v Kam, and important case addressing causation in the context of a failure to warn by a medical practitioner.

Mr Wallace sought medical assistance in relation to a condition of his lumbar spine. Dr Kam, a neurosurgeon, performed a surgical procedure on him. The surgical procedure had inherent risks. One risk was of temporary local damage to nerves within his thighs, described as "bilateral femoral neurapraxia", resulting from lying face down on the operating table for an extended period. Another, distinct risk was a one-in-twenty chance of permanent and catastrophic paralysis resulting from damage to his spinal nerves. The surgical procedure was unsuccessful: the condition of Mr Wallace's lumbar spine did not improve. The first risk materialised: Mr Wallace sustained neurapraxia which left him in severe pain for some time. The second risk did not.

Mr Wallace claimed damages from Dr Kam for the neurapraxia he sustained. Mr Wallace's claim in the Supreme Court of New South Wales was that Dr Kam negligently failed to warn him of risks including the risk of neurapraxia and the risk of paralysis and that, had he been warned of either risk, he would have chosen not to undergo the surgical procedure and would therefore not have sustained the neurapraxia.

The trial judge found that Dr Kam negligently failed to warn Mr Wallace of the risk of neurapraxia. But he also found that Mr Wallace would have chosen to undergo the surgical procedure even if warned of the risk of neurapraxia.  Because it was that risk which actually materialized, the question of whether Dr Kam had negligently failed to warn Mr Wallace of the risk of paralysis was irrelevant.

In the Court of Appeal Allsop P and Basten JA held that even if Dr Kam negligently failed to warn Mr Wallace of the risk of paralysis and that, if warned of that risk, Mr Wallace would not have undergone the surgical procedure, nonetheless he was not entitled to damages for the neurapraxia.  Beazley JA held to the contrary, noting that had he been warned of the risk of paralysis, the surgery (and hence the neurapraxia) would not have occurred.

The High Court unanimously rejected Mr Wallace’s appeal.  The Court held that the question of liability for the neurapraxia was to be answered by application of section 5D of the Civil Liability Act 2002.  That section divided the causation issue into two elements:  factual causation (ie was the negligence was a necessary condition of the occurrence of the harm - a straightforward “but for” test) and scope of liability (ie is it appropriate for the scope of the negligent person's liability to extend to the harm so caused).

The High Court held that a medical practitioner’s duty of care was a single comprehensive duty to exercise reasonable care and skill in the provision of advice and treatment.  A component of that single duty of care is to warn a patient of “material risks” inherent in a proposed treatment.  On the assumptions being made for the purposes of deciding the case, that duty was breached by the failure to warn of the risk of paralysis and the neurapraxia, and had Mr Wallace been warned of the risk of paralysis he would not have undergone the surgery.

In this case, the factual causation question was clearly and straight-forwardly answered in the affirmative.  The failure to warn of the risk of paralysis was a necessary condition of the neurapraxia sustained by Mr Wallace.

More difficult, however, was the “scope of liability” question.  The duty of a medical practitioner to warn the patient of material risks inherent in a proposed treatment is imposed by reference to the underlying common law right of the patient to choose whether or not to undergo a proposed treatment.  Beazley JA had considered it was appropriate to impose liability in this case because to do so would promote that objective.  However, the High Court held that the policy underlying the requirement that a doctor exercise of reasonable care and skill in warning of material risk is neither to protect that right to choose nor to protect the patient from exposure to all unacceptable risks. The underlying policy is rather to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient. It is therefore appropriate that the scope of liability for breach of the duty reflect that underlying policy.  Accordingly, in terms of section 5D, it was not appropriate for the scope of liability to extend to the harm (neurapraxia) that Mr Wallace was willing to accept asa consequence of the surgery.

The position of Mr Wallace in respect of the neurapraxia when considered for the purposes of causation was in principle no different from what his position would have been had Dr Kam properly warned him of the risk of neurapraxia and had he made an express choice to proceed with the surgical procedure in light of that warning. He was not to be compensated for the occurrence of physical injury the risk of which he was prepared to accept.

This week in the High Court of Australia

There is only one case being heard by the High Court of Australia this week.

In Director of Public Prosecutions (Cth) v JM the Court will hear an appeal from the Victorian Court of Appeal in a share market manipulation case.  In essence the question for consideration is whether the meaning of the phrase “artificial price” within the meaning of section 1041 of the Corporations Act 2001 is to be informed by the US jurisprudence relating to “cornering” and “squeezing”, concepts derived from trading in the futures markets that have no practical application in the equities market with which the prosecution of the respondent was concerned.  More generally, the cases raises important issues in relation to statutory construction, and in particular the use, and utility, or extrinsic material.

Forthcoming judgments in the High Court of Australia

The High Court will deliver judgment in four cases at 10am on Wednesday, 8 May 2013.

First up is the judgment in Beckett v State of New South Wales.  The plaintiff was formerly known as Roseanne Catt.  In 1991 a jury found her guilty of various offences relating to assaults on her husband by the plaintiff, and a number of offences of soliciting a Mr Morris and a Mr Taylor to murder her husband.  She was acquitted of a further offence of encouraging a Mr O’Brien to murder her husband, an offence for which the magistrate had refused to commit her to stand trial, but in respect of which the DPP had presented an ex officio indictment.  She was sentenced to 12 years imprisonment. An appeal to the Court of Criminal Appeal was dismissed.  In early 2001 the plaintiff petitioned the Governor for a review of her convictions (under s474B of the Crimes Act 1900) and at the completion of the procedure laid down for such a review in August 2005 the Court of Criminal Appeal quashed certain of the convictions and ordered a re-trial in respect of them.  In September 2005 the DPP directed that there be no further proceedings against the plaintiff in relation to those charges.  The plaintiff in August 2008 commenced proceedings against the State of NSW for malicious prosecution.  Separate Questions were stated for determination which raise the issue of whether or not the plaintiff, in her claim for damages for malicious prosecution, had to positively establish her innocence and whether proof of her innocence was a necessary element of the cause of action for malicious prosecution. A subsidiary question is whether the statutory power of the DPP to direct that there be no further proceedings is equivalent to entering a nolle prosequi at common law.

Second is the judgment in Minister for Immigration and Citizenship v Li.  In general terms this case considers the content of the procedural fairness requirements in appeals to the Migration Review Tribunal.  More particularly, it considers whether or not a refusal by the MRT to adjourn a hearing to enable the applicant time in which to satisfy a criterion for the grant of a visa, a criterion that the applicant did not then satisfy, amounts to a denial of procedural fairness.

Third is the judgment in in Wallace v Kam, an interesting failure to warn case.  The plaintiff suffered from a temporary condition known as bilateral femoral neuropraxia following spinal surgery.  This was caused by lying prone for an extended period during surgery, and was not a result of the procedure itself.  The plaintiff had not been warned of the risk of this condition, but the trial judge held that had he been warned he would have gone ahead with the surgery nonetheless.  However, the plaintiff also claimed that he had not been warned of the risk of paralysis as a result of damage to the spinal nerves from the surgery itself.  Had he been warned of that risk, he would not have proceeded with the surgery.  The trial judge and the Court of Appeal held that this risk was irrelevant, as it was not the risk that materialised, and the plaintiff was not entitled to recover damages for the risk that did materialise, because he was prepared to accept that risk. 

Foinally, judgment will be delivered in in Director of Public Prosecutions (Cth) v Keating.  In this case Keating was charged with obtaining a financial advantage in breach of section 135.2 of the Commonwealth Criminal Code.  This financial advantage was said to be the overpayment of certain social security benefits, totalling the princely sum of $6,292.79.  The overpayments occurred because Keating failed to inform Centrelink of changes to her income, which fluctuated fortnightly.  At the time of the overpayments, there was no obligation on Keating to inform Centrelink of the changes to her income.  Indeed, this was still the case at the time Keating was charged.  This situation was remedied in 2011 with the introduction of section 66A of the Social Security (Administration) Act 1999.  The main issue that arises for determination in the High Court is whether or not the Commonwealth has the power to retroactively impose the duty to inform Centrelink so as to now criminalise her past conduct, and if it has such a power whether section 66A in fact achieves that result.