GOODWIN V. BAKER

GOODWIN v. BAKER

'REASONS FOR JUDGMENT

= RS

Oral.

GOODWIN

Ve

BAKER »

ORDER

Appeal dismissed with costs.

(ee

GOODWIN

BAKER

JUDGMENT BARWICK C.d. (ORAL)

GOODWIN

ve

BAKER

The appellant, against whom a verdict was found in a District Court for $10,000 for the malicious prosecution of the respondent, failed in his appeal to the Supreme Court because the points of law which he there sought to raise as a ground for setting aside the judgment of the District Court had not, in the opinion of the Supreme Court, been raised before the judge of the District Court for his decision.

The Supreme Court held that the requirement of s. 144 of the District Courts Act 1912 had not been satisfied and that, following a consistent line of decision both in England and in Australia, the appellant's appea] was not competent; see Smith v. Charles Baker & Sons (1891) A.C. 325 at p. 333.

In this court counsel for the appellant has not challenged the proposition that unless the points of law have been raised before the District Court, no appeal based on them can be entertained: but he has argued that the form of certain questions addressed by the trial judge to the jury sufficiently

satisfied the requirements of s. 144 in that they represent the

trial judge's decision on matters of law to which those questions

are relevant, because he did, in fact, put the questions and act

upon the answers which the jury gave to them.

The main point which counsel for the appellant has sought to raise as a ground of this appeal is that the trial judge did not properly instruct himself as to the elements necessary to be present if the finding of absence of reasonable and probable cause for the prosecution of the respondent was to be made.

I gather that what is said is that the trial judge ought to have considered the appellant's state of mind in relation to a person named Barker and not to have acted upon the answer to the first question which the jury made, which was as to the appellant's state af mind in relation to the respondent. The point sought to be made is that the jury ought to have been asked, not did the defendant honestly believe that the plaintiff was probably guilty of the offence in connection with which the warrant was issued, but did the prosecutor honestly believe that the accused was probably guilty of the: offence in connection with which the warrant was issued.