Reported Decision : 62 NSWLR 95 (2004) Aust Torts Reports 81-737 New South Wales Court of Appeal CITATION : Cran v State of New South Wales [2004] NSWCA 92 HEARING DATE(S) : 21 August 2003 JUDGMENT DATE : 29 March 2004 JUDGMENT OF : Santow JA at 1; Ipp JA at 66; McColl JA at 84 DECISION : Appeal dismissed; No order as to costs. CATCHWORDS : NEGLIGENCE - whether duty of care to prisoner who was incarcerated and in course of incarceration suffered post-traumatic stress disorder where incarceration prolonged by reason of failure of Police and DPP to invoke well established fast-track arrangements for laboratory processing for detection of drugs - extent of immunity of Police - extent of immunity of DPP in relation to court proceedings involving the prisoner - relevance of breach of prosecutorial guidelines. LEGISLATION CITED : Director of Public Prosecutions Act 1986 s13 Adams v Kennedy (2000) 49 NSWLR 78 Cekan v Haines (1990) 21 NSWLR 296 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747 Elguzouli-Daf v Commissioner of Police of the Metropolis and another [1995] QB 335 Giannarelli v Wraith (1988) 165 CLR 543 Graham Barclay Oysters Pty Ltd v Ryan (2002) 71 ALJR 183 Hill v Chief Constable of West Yorkshire [1986] AC 53 Keefe v Marks (1989) 16 NSWLR 713 Kirkham v Chief Constable of the Greater Manchester Police [1992] WLR 987 L v Reading Borough Council [2001] 1 WLR 1375 CASES CITED : Lamb v Cotogno (1987) 164 CLR 1 Modbury Triangle Shopping Centre Pty Ltd v Anzil and another (2000) 176 ALR 411 Osman v Ferguson [1993] 4 All ER 344 Saif Ali v Sydney Mitchell & Company [1980] AC 198 Spring v Guardian Assurance PLC [1995] AC 296 State of New South Wales v Paige [2002] NSWCA 235 Sullivan v Moody (2001) 207 CLR 562 Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 Tahche v Abboud (No. 1) [2002] VSC 36 Tame v New South Wales (2002) 76 ALJR 1348; (2002) 191 ALR 449 Welsh v Chief Constable of the Merseyside Police & Anor [1993] 1 All ER 692 Whitehorn v R (1983) 152 CLR 657 John CRAN (Appellant) PARTIES : STATE OF NEW SOUTH WALES (First Respondent) WESTERN SYDNEY AREA HEALTH SERVICE (Second Respondent) FILE NUMBER(S) : CA 41008/02 COUNSEL : P W Gray/ D Carroll (Appellant) P Menzies, QC/ C Lonergan (First Respondent) SOLICITORS : Kim Cull, Legal Aid Commission of NSW (Appellant) I V Knight, Crown Solicitor's Office (First Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 2431/01 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41008/02 DC 2431/01 SANTOW JA IPP JA McCOLL JA 29 MARCH 2004 John CRAN v STATE OF NEW SOUTH WALES & 1 ORS Judgment 1 SANTOW JA: INTRODUCTION Did the State of New South Wales owe, and breach, any duty of care to the appellant in circumstances where the appellant claimed to have suffered harm in gaol by way of chronic post-traumatic stress disorder as a result of his experiences there during unnecessary prolongation of his imprisonment before trial? That prolongation occurred because the Police and the Office of the Director of Public Prosecutions ("DPP") both neglected to secure prompt analysis of items belonging to the appellant by the date ordered by the Magistrate. This analysis was of items suspected to be prohibited drugs but which when analysed turned out not to be, leading to the belated release of the appellant. When eventually the analysis was done, it was almost six weeks later than it would have been if either (a) the Police had filled out the form correctly, so disclosing that it was required for court proceedings on the date ordered; or (b) if the prosecutor had asked the Magistrate to request priority analysis. The failure in the case of the Police was essentially in carrying out a ministerial step in the course of investigation. While therefore no investigatory decision was involved, it was successfully contended before the trial judge, Puckeridge DCJ, that the omission having occurred in course of police investigation, it was immune from civil action. The prosecutor was treated as in like case, without any separate analysis of his position. 2 While the question of damage was also in issue, the appeal principally centred around whether the trial judge was in error in concluding that the State, represented by the Police and DPP, owed in the circumstances no duty of care to the appellant, or at any rate one that was breached. The analyst, Western Sydney Area Health Service, was not alleged to be in any way in breach of a duty of care, though a Bullock order was sought by the appellant. 3 The salient facts are not in dispute, save that matters going to damages were in issue. I shall deal with those in setting out the salient facts below. SALIENT FACTS 4 On 25 March 1998 the 43 year old appellant was arrested near Kings Cross where he was found drinking in a park. He had some paper stickers in his possession. The police thought these stickers were LSD. The appellant told the Police they were only paper but they did not believe him. 5 The appellant was charged with deemed supply of a prohibited drug, an indictable offence. The Desk Sergeant refused him bail. He was taken before a Magistrate the same day, 25 March 1998, where the relevant record states, somewhat contradictorily, "no application for bail was made" and "bail was refused". It can be taken that he pleaded not guilty. Significantly, the charge coversheet for 25 March 1998 records him as "possible suicide risk" (Blue, 13). 6 The appellant was sent to Silverwater Gaol, where, as events turned out, he was to remain in prison for just over nine weeks – 64 days – until 28 May 1998. The events during this period commence with the appellant being brought before the Central Local Court on 26 March 1998 when a brief of evidence was ordered by the Magistrate, including an analyst certificate, to be served by 16 April 1998. There is no suggestion that the Magistrate's order was in any way contested. Its effect was to require the analyst certificate by 16 April 1998. With bail refused, the appellant was totally dependent on the police providing the analyst's report on that date, so that he could be released promptly if the report cleared him. The eventual report did clear him, but was delayed in doing so till 26 May 1998. 7 On 27 March 1998, the suspect items were delivered to the second respondent, at the Division of Analytical Laboratories ("DAL") by the Police (Senior Constable Macready). The Police P377 form leaves a blank space to be completed with "date required by ……" and "COURT DATE: ……". Neither was completed. There is no suggestion that this represented a considered decision not to do so. 8 On 16 April 1998 the appellant again appeared, this time before Central Criminal Court (Magistrate Lulburn), with the appellant represented by a lawyer from the Legal Aid Commission. Only a partial brief, without the analyst's certificate, had been provided to the DPP and then to the solicitor for the appellant in court. The matter was therefore not ready to proceed and was adjourned for mention to 30 April 1998. Although bail was granted this time, it was subject to conditions which included bail money both from the appellant ($1,000 subject to forfeiture if the conditions were not fulfilled) and from an acceptable person ($500). Given that the appellant had no fixed place of abode (Red, 26), the bail conditions not surprisingly were unable to be complied with, leaving the appellant in custody. 9 On 30 April 1998 the matter again came before the Central Local Court (Mr Cloran) Magistrate. The DPP was legally represented as also the appellant. The matter was stood over to 14 May 1998 and an order was made that the brief be served by 14 May 1998. No application was made at that point to vary the bail conditions. 10 On 14 May 1998 the matter was mentioned before the Central Criminal Court (Magistrate A Moore). The appellant was still in custody and was not legally represented that day. An application was made by a representative of the DPP to adjourn the matter, due to delay in receiving the ERISP record of interview and analyst certificate. The matter was stood over to 28 May 1998. The appellant sought to vary bail as he was unable to obtain an acceptable person but the court declined to vary the condition with the result that bail was again refused. He remained in Silverwater gaol. 11 The trial judge, Puckeridge DCJ, found (Red, 31) that it was only on 25 May 1998 that the Police advised the Senior Analyst by telephone for the first time that the analyst's certificate was required for court. (In fact the date was 21 May 1998, as the appellant rightly corrects (Orange, 6 para 7) but nothing turns on that.) The Police claimed to have informed the analytical laboratory earlier "that the claimant was in custody and [claimed to have] followed the matter up" (letter from DPP of 14 July 1998, Blue, 24). The trial judge preferred to believe the Government Analyst, Ms Chang, that the Police had not informed the Government Analyst until 21 May 1998. 12 There was no challenge on appeal to the position as described by the trial judge, namely that where a respondent is in custody and the laboratory is informed of that fact, the laboratory does its analysis promptly and guarantees to do so at least within three weeks. It can be inferred that the laboratory is sufficiently informed either by correctly filling out the Police form or by request from the Magistrate at the behest of the lawyer for the DPP appearing on the prosecution. In evidence was a memorandum from within the Office of the Director of Public Prosecutions (Blue, 60). Under the heading "Defendant in Custody", it instructs its lawyers to ask the Magistrate to request priority analysis where the defendant is in custody, so that the 3 week fast-track procedure is then guaranteed. I quote: "A Fasttrack arrangement is in place for the priority analysis of drugs where the defendant is in custody. The arrangement requires a request from a Magistrate and carries a guarantee that the report will be provided within 3 weeks. Accordingly, in such cases ODPP lawyers appearing should inform the Magistrate of the arrangement, ask him/her to make the request, and then ensure that the Magistrate's request is passed on to the Laboratory by way of a written request. For fax details see below." 13 But the Laboratory was not told the results were "needed for an impending court date" until, as I have said, 21 May 1998, almost two months after the appellant's arrest. To make matters worse, until the court hearing on 11 June 1998 the Police disputed this. Once, however, the laboratory was so told, on 21 May 1998, it did the analysis promptly and produced the certificate within five days, that is on 26 May 1998. Next day the Analyst's Certificate was delivered to the DPP's office. To complete that sequence of uncaring neglect by the Police, with no request to the Magistrate or follow-up from the DPP, it was not until 30 June 1998, well after the appellant had been released, that the Laboratory was even told that the appellant had been in custody. Thus the trial judge made the finding that "the laboratory was not advised until 25 May 1998 that the result of the analysis was required for court" … and that the laboratory "was first advised by phone on 30 June 1998 that the plaintiff was in custody"; Red, 31. This was moreover in relation to a prisoner earlier identified by the Police as a suicide risk. This was a plaintiff who was totally dependent on the police or DPP to procure an expeditious analysis. The appellant was clearly vulnerable to suffering harm in gaol as a result of the wrongful prolongation of his stay there, itself the result of that uncaring neglect by police and DPP. 14 On 28 May 1998 the appellant was brought before Central Local Court. Not surprisingly this time he was granted unconditional bail and released from custody. 15 The trial judge found as a fact that, had the Laboratory been notified that the plaintiff was "in custody", it is more probable than not that the result of the analysis (showing that the prosecution case against the appellant must fail) would have been before the court on the first adjourned date of 16 April 1998 (Red, 31). Thus had the DPP lawyer doing the prosecution informed the Magistrate that the appellant was in custody, as required by the earlier instruction (blue, 60) and acting in conformity with prosecution guidelines (to "act impartially and fairly to the accused person" and so that "cases should be prepared for hearing as quickly as possible" and "the evidence available must be continually assessed with a view to identification of the proper charge") (Blue, 58), the report would have been available on 16 April 1998. I would equally infer that had the form been properly filled out by the Police completing "date required by" and "Court Date", the result more probably than not would have been the same, based on the speed with which the report was made available after this information was made available. The appellant would then have been released from custody on 16 April 1998, just as ultimately occurred on 28 May 1998 when the certificate was belatedly before the court. 16 Finally, when the matter was before Central Local Court on 11 June 1998, the prosecution offered no evidence so that the charges were dismissed, with the appellant's application for costs order being stood over to 9 July 1998 when it was then ordered that the DPP should pay the defence costs. INJURY AND DAMAGE 17 It is undisputed that on four occasions during his imprisonment, the appellant was bashed. On those occasions he suffered only relatively minor physical injuries. However he witnessed both a rape and a murder of other prisoners by other prisoners. His evidence was that he lived in fear and now suffers from, among other things, chronic post-traumatic stress disorder. That is disputed. At least one of these bashings, the fourth, it can fairly be inferred, took place after 16 April 1998 (Red, 32-3). By that date the appellant would have been released, but for the Police failure to fill out the police form with the court proceedings date. Also it can be inferred that at least some of the damage alleged by the appellant in his particulars of loss must have taken place after 16 April 1998, namely (Red, 20): (a) exposure to intimidating behaviour, (b) mental distress, indignity and anxiety, (c) physical inconvenience and discomfort, (d) loss of income, (e) chronic post-traumatic stress disorder; (f) increased anxiety, depression and alcoholic abuse, 18 The appellant suffered loss of liberty from his prolonged imprisonment beyond 16 April 1998 which he should not have suffered. This the appellant contends should be compensable, as damages for breach of a duty of care, by analogy to the principles applicable to false imprisonment. The appellant cites McGregor on Damages, 1997 at para 1850, concerning false imprisonment: "… generally it is not a pecuniary loss but a loss of dignity and the like and is left much to the jury's or judge's discretion. The principal heads of damage would appear to be injury to liberty, i.e. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings i.e., the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status. This will all be included in the general damages which are awarded in these cases: no breakdown appears in the cases." 19 Reverting to the four assaults, the appellant does not seek to recover for physical injury on each of those occasions, as he essentially recovered physically from the physical injuries. What the appellant does contend is that these assaults remained significant in the assessment of damages in two respects. First, they were terrifying ordeals in themselves. Second, he attributed his suffering post-traumatic stress disorder to those assaults, as well as a murder and rape which he witnessed in gaol. 20 The appellant did not give evidence as to the precise dates upon which the assaults occurred. He did give evidence to the effect that the first of them was "only a couple of weeks into my stay at Silverwater" (Black, 6). His "stay at Silverwater" began on 25 March 1998. Therefore "a couple of weeks" after that would be prior to 16 April 1998. The appellant presses that a reasonable inference would be that the second and third such assaults, not just the fourth, would have taken place after 16 April 1998; Black, 8-9. 21 I would accept that inference. I am in any event satisfied that damage did result from the last assault at least, which I would accept took place after 16 April 1998; Red, 32-3. 22 I am also prepared to accept that the psychiatric and other evidence bears out the appellant's submission, namely that the appellant found the unlawful detention when he was innocent, distressing, humiliating and very frightening, with evidence that it damaged his closest family relationships. As the psychiatrist Dr Greenway records, while the appellant was in gaol he was abandoned by the rest of his family and his dog was stolen, to whom he felt especially close (Blue, 75). That the experiences of being bashed, of being constantly in fear, and in witnessing other prisoners being raped and murdered did cause serious psychological injury is attested to by Dr Greenway who examined him (Blue, 74). Dr Greenway accepted the diagnosis of post-traumatic stress disorder, which he described as chronic and unlikely to improve greatly. While he added that "his personality may be contributing to his presentation" I do not understand that to be more than a possible contributing factor. That assessment was not challenged by any medical evidence from the respondents, despite their having had the appellant examined by two psychiatrists of their own. Moreover, the respondents did not seek to cross-examine the appellant's medical experts. I am also prepared to accept that the prolongation of his imprisonment after 16 April 1998, even accepting that one or more, but not all, of the assaults, and the murder, may have taken place before 16 April 1998, did cause or exacerbate some of the psychological harm to the appellant; T, 7.57-8.6, 9.28-.33, 10.18-.28 and 11.54-7 (21 June 2002). There is also the appellant's evidence about the apparent rape "in the latter part of [his] time in custody"; T 13.18 (21 June 2002) and following, and the evidence he gives as to his distress in reaction to it. 23 His medical evidence was that he has suffered ever since from severe anxiety and stress, and increased alcohol abuse; see appellant's evidence at T, 17-20, 22, 36 and 40 (21 June 2002) and the reports not only of Dr Greenway but also of Drs Hines and Waite. Drs Hines and Waite confirm his diagnosis as that of chronic post-traumatic stress disorder. 24 It suffices for present purposes if I note that the damage which the appellant claims comes under the following heads; (a) damages for loss of liberty; (b) general compensatory and aggravated damages by reason of deprivation of the appellant's liberty which was said to have brought with it, inevitably, feelings of indignity, disgrace and humiliation; (c) the appellant's continued non-recovery from the terrifying ordeals that he suffered in not only physical but also non-physical aspects; and (d) not only are aggravated damages claimed but also exemplary damages, in reliance on the principles in Lamb v Cotogno (1987) 164 CLR 1 and Adams v Kennedy (2000) 49 NSWLR 78. 25 As to damage as bearing upon any duty of care, the trial judge concluded as follows: "In considering in whether or not a duty of care could be said to arise in the circumstances I took into account the evidence of Dr Greenway, Psychiatrist. In his report of 29th October 2001 Dr Greenway stated that in his opinion it is probable that the plaintiff's incarceration in 1998 resulted in an exaggeration of his personality traits [eg suspiciousness], and also increased his sense of isolation. I consider that such psychological symptoms could have arisen from the plaintiff's incarceration on 25 March of 1998. But the plaintiff does not claim damages for wrongful arrest, and did not seek bail when brought before the Court on 25 March 1998. I also note that Dr Greenway was of the opinion that the plaintiff did not meet the criteria for a post traumatic stress disorder." 26 The trial judge cited Dr Greenway as being of the opinion that the plaintiff did not meet the criteria for a post-traumatic stress disorder. However, I am satisfied that here the trial judge was, with respect, in error when one considers Dr Greenway's report as a whole. I consider that damage caused by the respective respondents should have been found. I also consider that his suffering this disorder as a result of conditions found in the gaol was foreseeable in the case of a person like the appellant, known to be a suicide risk. That he was a suicide risk pointed to his obvious vulnerability in a prison situation like Silverwater. CONTENTIONS OF PARTIES – Duty of Care? 27 But foreseeability of harm is necessary but not enough. Thus the respondent, in disputing any duty of care in relation to what was done in course of police investigation, or the prosecution, cites in support the High Court's joint judgment in Sullivan v Moody (2001) 207 CLR 562 at 576 [42]: "The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results . If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care. [emphasis added] 28 The High Court also observed (at 581-2 [46-60]): "How may a duty of the kind for which the appellants contend rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty? A similar problem has arisen in other cases. The response to the problem in those cases, although not determinative, is instructive. In Hill v Chief Constable of West Yorkshire [1986] AC 53, the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate. ……… The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations. [emphasis added]" 29 The appellant contends that notwithstanding the principle that the police investigative function ordinarily precludes civil liability, nonetheless liability in negligence did lie in the present case, given what is said to be its distinguishing features. First, the appellant was totally dependent on the State, in the form of Police and DPP, either informing the analyst of the court proceedings date by properly completing the form, or by the DPP asking that the Magistrate request urgency by advising the Analyst that the person concerned was in custody. He was vulnerable to the consequences of a prolonged stay in gaol if they failed to do so. In form-filling, the Police were not engaged in any investigative decision-making or policy, but were required to take a purely ministerial step. Taking that step, it is said, involved no inconsistency with police investigative responsibilities; rather it was directly in fulfilment of them. Moreover in the case of the DPP, the function involved was not investigative but prosecutorial, and the failure clearly contravened the current "Prosecution Police and Guidelines". Guideline 2 states: "… it is a fundamental obligation of a prosecutor to assist in the timely and efficient administration of Criminal Justice. Accordingly it is stated 'cases should be prepared for hearing as quickly as possible." Item 4 in the guideline manual, so far as is relevant, reads as follows: "All cases must be continually screened while being dealt with by the office. The evidence available must be continually assessed with a view to identification of the proper charge; requisitions to be made for further investigation and the proper course to be taken by the prosecution. Conferences with witnesses are an essential part of the screening process." 30 It was also contended that the Police and DPP had impliedly assumed a responsibility to the appellant, in compliance with the Magistrate's order, to obtain the analyst's certificate by 16 April 1998, knowing that the appellant was totally dependent on them to do so. 31 Finally, it was contended that, by analogy to the duty owed by a jailor to the prisoner in custody, an analogous duty to that in Cekan v Haines (1990) 21 NSWLR 296 was owed here. It finds its parallel in Kirkham v Chief Constable of the Greater Manchester Police [1992] WLR 987 at 996 where Farquarson LJ described the scope of that duty in these terms: "… when one person is in the lawful custody of another, whether that be voluntarily, as is usually the case in a hospital, or involuntarily, as when a person is detained by the police or by prison authorities … there is a duty upon the person having custody of another to take all reasonable steps to avoid acts or omissions which he could reasonably foresee would be likely to harm the person for whom he is responsible." 32 The trial judge concluded against the appellant as follows (Red, 36): "On the evidence before me, the plaintiff may have an action against the State, for breach of duty to protect him from foreseeable risk of injury whilst he was in custody. I do not consider that in the circumstances of this case the first defendant assumed a specific responsibility to the plaintiff to see that information as to the Court date on 16th April 1998 was given to the Government Laboratory. The prosecution authority may have failed to act according to the guidelines contained in the DPP manual, but I do not consider any such failure equates to a duty owed to the plaintiff to see that the laboratory was advised of the Court date. I do not consider the first defendant was under a duty of care to the plaintiff in the circumstances." RESOLUTION OF APPEAL 33 I deal first with whether, as the appellant contended, the Police or DPP owed him a duty of care derived from the gaoler's custodial duty of care in Cekan v Haines and Kirkham. When one turns to the particulars of negligence in para 16 of the appellant's statement of claim the basis for such a claim is not readily apparent from the pleaded case: "16. The police officers were negligent in and about the obtaining of the analyst's certificate. Particulars of negligence (a) The police officers failed to inform the Institute with reasonable promptness that the Plaintiff was in custody pending the provision of the analyst's certificate. (b) The police officers failed to inform the Institute with reasonable promptness that court proceedings were fixed for a date in the near future. (c) Had the institute been so notified, it would have ensured, as the First Defendant well knew, that the analyst's certificate was provided in no more than three weeks, ie by no later than 17 April 1998. (d) The police officers did not inform the Institute that the Plaintiff was in custody until 21 May 1998, whereupon the Institute provided the analyst's certificate within five days." 34 Clearly neither Police nor DPP had custody of the appellant; they were in no sense the custodial authority. The appellant however sought to extend the notion of what might be called the custodial duty of care to embrace Police and DPP in their bringing about the unjustified prolongation of the appellant's custody. Thus in Kirkham itself, liability fell not on the gaoler but on the police. This was because the police failed to pass on to those in charge of the custody of the prisoner, information that the police had of the prisoner's suicidal tendencies. However there is here a critical difference. In Kirkham police had information directly related to the risk of suicide which eventuated, and failed to pass it on to the custodial authority. It can be readily seen in Kirkham that there was indeed a direct relationship between the prisoner's suicide in custody, and the police failure to pass on to the custodial authority information as to the prisoner's vulnerability. But in the present case, the failure lay not in informing the custodial authority of a matter of that kind, but in failing to take the investigative and prosecutorial steps which would have seen the prisoner in his vulnerable state released from gaol much earlier. Clearly, any omission lay in the sphere of investigation and prosecution, not custodial responsibility. The respondents' case is that its conduct in that sphere, whether as police investigator or prosecutor, enjoyed immunity from any action in negligence. It is to that proposition I now turn. 35 In Tame v New South Wales (2002) 76 ALJR 1348 there are however strong dicta suggesting that the English authorities would be followed in Australia which, in the words of McHugh J, "negate the existence of a duty of care". So "police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice in a case by case examination of each recording."; at [126]. 36 McHugh J concluded (at [125]) that "police officers are frequently obliged to record and use statements from witnesses and informants, statements that frequently damage the reputation of others. It seems preposterous to suggest that an officer has a duty of care in respect of such statements. Gathering and recording intelligence concerning the activities, potential activities and character of members of the criminal class is also central to the efficient functioning of a modern police force…". 37 Gummow and Kirby JJ in Tame cited the same line of English authority at [231]: "It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained,254 fully to investigate the conduct in question.255 " 254 Attorney-General (NSW) v Perpetual Trustee co (Ltd) (1955) 92 CLR 113 AT 118-121; [1955] AC 457 at 477-481. 255 Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63-64, 65; X (Minors) v Bedfordshire County council [1995] 2 AC 633 at 739; Sullivan v Moody (2001) 75 ALJR 1570 at 1580 [60]. 38 Hayne J described the extent of immunity of police officers in their investigative role in these broad and unqualified terms: "Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties.322 " 322 Sullivan v Moody (2001) 75 ALJR 1570 39 Finally, Callinan J at [335-6] would test the scope of police immunity in providing a report of their investigations by whether "the lawful administrative purposes of the [relevant] scheme in its implementation are reconcilable with the imposition of a duty not to cause psychiatric injury to persons the subject of a relevant report". His reasoning was as follows: "[335] In Sullivan , the Court referred to Hill v Chief Constable of West Yorkshire 356 in this way357: 'In Hill v Chief Constable of West Yorkshire ,358 the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out359 that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate.' [336] In Sullivan , reference was made to the statutory scheme which the defendants there were implementing, a scheme relevantly for the protection of children360. The administrative scheme here has a number of purposes: to provide statistical information with a view, presumably, to exploring means for the prevention of accidents; to facilitate the investigation of accidents; to assist in the bringing of criminal or quasi-criminal proceedings in respect of them; and, perhaps other administrative purposes. There is a question here of the kind which was answered in the negative in Sullivan: whether the lawful administrative purposes of the scheme and its implementation are reconcilable with the imposition of a duty not to cause psychiatric injury to persons the subject of a relevant report." 356 [1989] AC 53. 357 (2001) 75 ALJR 1570 at 1580 [57]; 183 ALR 404 at 416. 358 [1989] AC 53. 359 [1989] AC 53 at 63. 360 (2001) 75 ALJR 1570 at 1580 [62]; 183 ALR 404 at 417. 40 More recently, in State of New South Wales v Paige [2002] NSWCA 235 (19 July 2002 unreported), in the context of a claim for psychological damage suffered as the result of the way in which the Principal of a school was dismissed, the following was said by Spigelman CJ: "[114] One factor that is common to all three stages [of the statutory decision-making process] is the inhibiting effect on the process of investigation and decision that would arise if the law were to impose a duty of care to avoid the risk of mental trauma to the person whose conduct was being investigated. [115] As a general rule, in my opinion, it is undesirable to inhibit an investigation into the exercise of a statutory power which protects public interests by imposing the chilling effect of a risk of civil liability. As Lord Keith of Kinkel said with reference to police investigation of crime: "In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind.' ( Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 63.) [116] In X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Lord Browne-Wilkinson said: '... a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.' (at 739)…" 41 The appellant placed particular reliance on a recent decision of the Supreme Court of Victoria in Tahche v Abboud (No. 1) [2002] VSC 36 (1 March 2002, unreported). In that case, Smith J first refers to Hill v Chief Constable of West Yorkshire (supra). He then deals with whether the plaintiff had nonetheless an arguable case that there was the requisite relationship between the plaintiff and a group of police officers engaged in a review of the plaintiff's conviction so as to give rise to a duty of care. According to the pleading, the duty was: "promptly to disclose to the plaintiff, alternatively to the DPP, information of which they were aware that; (a) was or would have been relevant to the defence of the alleged revenge rape or otherwise was or would have been required to be disclosed for the plaintiff to have had a fair trial; or (b) was relevant to any application by the plaintiff to have his conviction set aside or that indicated that the plaintiffs conviction was or might have been unsafe or a miscarriage of justice or otherwise liable to be set aside on the application of the plaintiff." In the particulars it is alleged that the duties were imposed by the law." 42 The alleged obligation to disclose was said to continue so long as the plaintiff remained in gaol. In the proposed pleading it was further alleged that the relevant officers, along with other defendants, "knew or ought to have known that if they did not comply with that duty [of disclosure] the plaintiff might remain convicted and in gaol when he might otherwise have been able to have his conviction set aside and to be released from gaol and that the plaintiff thereby suffered loss and damage". 43 On the basis of these allegations it was alleged that the proposed defendants owed to the plaintiff "a duty to take reasonable care to ensure that they promptly disclosed such information to him or his legal representatives or, alternatively, to the DPP and that they breached that duty". 44 At [69] Smith J sets out his reasons for concluding that the plaintiff on present material had an arguable case that the requisite relationship did exist and that a duty of care arose in the case of the relevant officers: "[69] In analysing the issues, I suggest that a distinction should again be drawn between those officers who arguably had the responsibility to make decisions about whether to take the review of the plaintiff's conviction further and those officers whose task it was to gather the material and contribute to any discussion of it. What matters from the point of view of the plaintiff's loss seems to me to be the police investigation of the evidence which cast doubt upon his conviction. The plaintiff can point to no material to support an argument of negligence in the gathering of the relevant material. What is proposed to be alleged as the negligence of the proposed defendants is a failure to exercise reasonable care to ensure they promptly disclosed the information to the plaintiff, his legal representatives or the DPP. If there is to be a case of negligence made out it must focus on those involved in the decision making process in that review process and whether that was conducted with due care. In those circumstances the field of potential defendants is narrowed to those actually involved in the decision making process - that is, those whose task and responsibility it was to review the material and determine whether it should be disclosed to the plaintiff or be sent to the DPP for review. That appears on the material before me to narrow the field of potential defendants to Waterman, Pritchard and Willis. Having regard to the discussions of the approach to determining the existence of a duty of care in Sullivan's case and other recent High Court decisions33, the following relevant arguable points may be made - • Those three officers were engaged in a review of information relevant to the conviction of the plaintiff. • It was reasonably foreseeable that harm could follow for the plaintiff if they failed to exercise reasonable care. • To impose a duty of care in reviewing the material and deciding whether to recommend referral to the DPP, or to the plaintiff and his lawyers, creates little or no conflict with their other duties and responsibilities, but rather encourages due performance. • The circumstances in which the officers found themselves were special. They were not conducting a general investigation of alleged crimes. They were concerned with whether the conviction should be reviewed of someone who was in gaol and was going to remain in gaol for at least 10 years so long as the conviction was not quashed. Thus to find a duty of care would not expose police to indeterminate liability. • The plaintiff was in a particularly vulnerable position in that he and his legal advisers were entirely dependent upon, and relying upon the police officers to take steps needed to consider the issues properly. They could not themselves take part because they were completely ignorant of the relevant information, could not compel its production and could play no part in the review and decision making process. • The officers concerned would have been aware of the fact that the plaintiff was entirely dependent upon their due performance of their responsibilities and was relying upon them to carry out those responsibilities with reasonable care." 45 This case differs from the present case in that in Tahche, the attributed duty of care arose in disclosing the critical results of a completed investigation, not one in course of being carried out. The plaintiff suffered prolongation of his imprisonment not by reason of delay in the investigation or a phase of it, but delay in making available its final result. Whether indeed the police investigative immunity depends on such a distinction is not an issue before us. But Tahche otherwise shares the following features with the present case: (a) contrary to Tame , harm to the plaintiff was foreseeable in each case; (b) imposing a duty of care in the particular circumstances prima facie involved no conflict with other duties and responsibilities; (c) in each case the circumstances were special, and not such as would expose the Police to an indeterminate liability to an indeterminate class; (d) the plaintiff was particularly vulnerable to any delay in communicating the result of that investigation or a phase of it; (e) the Police would have known of the plaintiff's total dependence on them; and (f) this was in carrying out what was essentially an administrative step involving no matter of substantive decision or policy, or even operational decision-making (were operational decisions to be distinguished from policy decisions, a distinction in this area properly not encouraged by the Court of Appeal in Osman v Ferguson [1993] 4 All ER 344). 46 The appellant pressed upon us these features as justifying the finding of a duty of care. It was correctly said that here there was the most mechanical of investigative tasks; that of filling out a form. It was then argued that to subject the performance of such a ministerial task to a duty of care can have no material effect on the deployment of resources, nor impede or render defensive any police decision-making nor affect any policy priorities of the Police in their investigative role. It would not require, it was said, any additional resources for the Police to have filled out the form properly so as to comply with the Magistrate's order by the due date. If the police investigative immunity is not absolute (as for example in the successful action in negligence brought by an informant against the police, whose information the police had promised to keep confidential; Swinney v Chief Constable of Northumbria Police Force [1997] QB 464), then this limited class of case should likewise not enjoy immunity. There are not the policy considerations favouring immunity in a case of purely ministerial incompetence. Its remediation should not involve a significant call on resources, if indeed any. 47 To this the respondents argue that one cannot properly dissect the investigative task, by singling out for judicial scrutiny its ministerial elements while rendering immune the rest. 48 Indeed the difficulty in the way of the appellant's argument is this. Even ministerial tasks involve decisions as to priorities in the deployment of resources. Naturally mistakes in even mechanical tasks will occur. If the Police were for fear of civil action to employ additional resources to check that forms were properly filled out, the scope for the kind of tragic mistake made in the appellant's case would, it is true, be greatly reduced. However, that may well involve an allocation of resources away from active police enforcement to administration, particularly if any administrative decision, even ministerial, were thereby rendered amenable to civil liability when performed carelessly. Moreover any extra checking might create its own delay, itself inimical to efficiency. 49 In Graham Barclay Oysters Pty Ltd v Ryan (2002) 71 ALJR 183 at [6] Gleeson CJ explains that "decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political". He then makes clear (at [7]) that "if the reasonableness of such priorities is a justiciable issue, that can be so only within limits". 50 The question here is whether rendering any aspect of police investigation and in particular what might be described as purely ministerial tasks amenable to civil liability exceeds those limits. In light of the strong dicta in Tame, an intermediate appellate court would necessarily be constrained in finding such an exception. This is so, even though its scope be modest, though the injured person be totally vulnerable and where the police or prosecutorial authorities have the entire power to control the situation that brought about that harm to the injured person. Thus McHugh J in Graham Barclay Oysters Pty Ltd supra at [84] citing Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 39 [94], does recognise that there can be a supervening policy reason that denies the existence of a duty of care notwithstanding that there are other powerful factors pointing in its favour. Here recent, binding authority stands in the way of imposing a duty of care, more especially where it would tend to have an inhibiting affect upon the discharge of police investigative functions or associated prosecutorial functions, recognising the hardship this will undoubtedly occasion for those left without a remedy. 51 While it may be said that calling police to account for failure to perform ministerial tasks actually enhances the performance of their duty, I do not consider that that resolves the fundamental difficulty. It is that by subjecting by way of exception mechanical tasks to a duty of care, courts are thereby affecting police priorities in the allocation of resources. Subjecting even ministerial tasks to prospective civil liability thus has policy implications. 52 I turn now to what is nonetheless a recognised exception where a duty of care is allowed on current authority. It arises where the Police or prosecutorial authorities expressly or impliedly assume responsibility, to the person injured, who was entirely dependent on an undertaking so expressed or implied. The responsibility if assumed in the present case, would have been to take reasonable steps to have the analyst's report available on the first court ordered date, via the fast-track which they could readily obtain by completing the form properly or by having the Magistrate request it. Assumption of responsibility by the Police to the plaintiff has been recognised as a narrow exclusion zone where, despite the immunity and policy factors supporting it a duty of care is recognised. But the scope for finding such an assumption where not express but implied is likely to be limited as I later explain. This is for the purpose of attributing civil liability in negligence for breaches of the duty of care so assumed, though it occur in the course of criminal investigation. But such exclusion requires that the conduct in question not invoke another immunity. I refer here to the advocate's immunity. It requires that what is done be in connection with, or ancillary to, the conduct of a case in court or be so intimately connected with such conduct that it can fairly be said to be a preliminary decision affecting the way that case is to be conducted when it comes to a hearing; Keefe v Marks (1989) 16 NSWLR 713 at 719-20 per Gleeson CJ. 53 In Welsh v Chief Constable of the Merseyside Police & Anor [1993] 1 All ER 692 it was found that the Crown Prosecution had expressly assumed responsibility for informing the Magistrate's Court that the plaintiff's offences had been taken into consideration by the Crown Court. But the prosecutor failed then to carry out that responsibility. As a result, the plaintiff's bail was revoked and he was imprisoned. Tudor-Evans J concluded that this was an administrative act which fell outside any immunity of judicial functions so that a duty of care could be found. He held that the relevant immunity for the Crown Prosecution Service did not extend to any failure by the Crown Prosecution Service to carry out its general administrative responsibility or practice as prosecutor to keep the court informed as to the state of an adjourned criminal case. It was not absolved from its particular responsibility then to inform the Crown Court. This was because of the prosecutor's express undertaking to the plaintiff to do so. 54 In the present case, the DPP lawyer, in course of conduct of the litigation in court, failed to ask the Magistrate to request the analyst to provide the fast-track arrangement assured to a defendant in custody. While the Police failure to fill out the form properly may be capable of being characterised as an administrative act in the investigative process rather than being so intimately connected with the adjudicative process as to invoke the advocate's immunity, I do consider that the DPP lawyer's role was directly related to the in-court adjudicative process. He was thus within the advocate's immunity notwithstanding the duty of the prosecutor to act fairly as a "minister of justice" (compare Deane J in Whitehorn v R (1983) 152 CLR 657 at 663-4) and under the DPP guidelines. 55 That exclusion zone for responsibility assumed was recognised and distinguished in a penetrating judgment by Steyn LJ (as he then was) in Elguzouli-Daf v Commissioner of Police of the Metropolis and another [1995] QB 335. There it was held that there was no voluntary assumption of responsibility by the Crown Prosecuting Service in the particular circumstances of that case. In that case, the Crown Prosecuting Service was indeed negligent in failing to act with reasonable diligence in obtaining, processing and communicating the results of forensic scientific evidence which would have shown the plaintiff to be innocent. Negligence was also alleged in a second case where the Crown Prosecuting Service took 85 days to conclude a prosecution that was bound to fail. 56 At 349 Steyn LJ concludes against any duty of care, again in a context where on one view the shortcomings concerned matters of administration rather than discretionary decision: "That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the C.P.S. to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The C.P.S. would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the C.P.S. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of C.P.S. lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the C.P.S. is sued in negligence by aggrieved defendants. The C.P.S. would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the C.P.S. and the quality of our criminal justice system." 57 Earlier (at 348) he had rejected any attempt to find a duty of care on the part of the prosecution's lawyers to the plaintiff though recognising that the prosecutor in criminal proceedings is also a "minister of justice". I would adopt what he says in the present case: " Lawyers' duties to the opposing party It must be remembered that a distinctive feature of this case is that the plaintiffs seek to impose liability on the C.P.S. for the negligence of C.P.S. lawyers in failing to protect the interests of the person [in custody] that they were engaged in prosecuting. In the absence of a specific assumption of responsibility lawyers engaged in hostile civil litigation are not liable in negligence to the opposing party: Al Kandari v J R Brown & Co. [1988] QB 665; Business Computers International Ltd v Registrar of Companies [1988] Ch 229. but I do not wish to take this analogy too far since a prosecutor in criminal proceedings is also a minister of justice. Nevertheless the reality is that a defendant in criminal proceedings must rely on the justices or the judge, and his own lawyers, to protect his interests. No doubt there is a public law duty on prosecutors to treat him fairly. But it does not follow that he should have a private law remedy in damages for the negligence of lawyers engaged by the C.P.S. to prosecute him for and on behalf of the whole community." 58 The appellant in the present case attempted to invoke an implied assumption of responsibility. The appellant argued that, because the appellant was totally dependant upon the State of New South Wales in the form of the Police or DPP to obtain the analyst's report promptly so as to establish his innocence and be released from custody when bail was refused, that dependence and vulnerability sufficed to constitute an assumption of responsibility of the kind that would render the Welsh v Chief Constable of Merseyside exception applicable to Police and DPP. The appellant also called in aid the Magistrate's apparently unchallenged court order for the report to be available with the brief by the first hearing date. The appellant also invoked the prosecutorial guidelines furnished pursuant to s13 of the Director of Public Prosecutions Act 1986 where, according to guideline 2, "it is a fundamental obligation of a prosecutor to assist in the timely and efficient administration of criminal justice", so that "cases should be prepared for hearing as quickly as possible". But clearly these guidelines could not render the police in any equivalent position to the DPP, even were they capable of giving rise to any assumption of responsibility. The DPP as I have said, is entitled to advocate's immunity. 59 In any event, I do not consider that that combination of circumstances does constitute an implied assumption of responsibility to the appellant, there being clearly no express assumption. Submitting (putting the matter at its highest) to the court order which required the analyst's report by a certain date, where the plaintiff is known to be totally dependent on the prosecution to do so, at most involves an assumption of responsibility to the Court, and possibly so far as the accused is concerned, to provide the result of that report promptly when received. That much is arguable on the basis of Tahche, though subject to advocate's immunity in the case of the DPP at least. But even if correct, it falls short of there being any assumption of responsibility to the appellant, where the Police failure lay rather in not taking the steps required for a fast-track response, not in sitting on the result. 60 Moreover, in considering whether there was any implied assumption of responsibility or implied undertaking, there was nothing in the present dealings between Police and accused, or DPP and accused, which was in any way analogous to the kind of relationship which could invoke an implied assumption or undertaking of responsibility found in other cases. I refer here to relationships such as solicitor and client, teacher and pupil, banker and customer, employer and reference recipient with the undertakings implied by that relationship; compare Spring v Guardian Assurance PLC [1995] AC 296 at 317-8 per Lord Goff. The nearest case I have found is L v Reading Borough Council [2001] 1 WLR 1375, whose correctness must be doubtful in this country since Sullivan v Moody (supra). There an implied assumption of responsibility was found, after a father had been interviewed by the police officer concerning the mother's allegations of sexual abuse of their child. There was said to be no assumption of responsibility towards the father as a suspect. But there was thereafter said to be arguably an assumption of responsibility to him by the police to take reasonable steps not to damage him, as by misrepresenting the result of the interview. The difficulty, as in Sullivan v Moody, lay in the evident conflict between what was done, albeit mistakenly, to protect the child, and the harm thereby inflicted unfairly on the father. I do not consider that this case is in any event analogous. 61 Moreover, the appellant's invocation of the exclusive power of Police and DPP to obtain the analyst's report promptly, and the appellant's consequent dependence, confuses capacity with obligation; compare what was said in Modbury Triangle Shopping Centre Pty Ltd v Anzil and another (2000) 176 ALR 411 at [23-4] by Gleeson CJ: "[23] The present is not relevantly a case of assumption of responsibility. The respondents submitted that the appellant assumed responsibility for the illumination of the car park. That submission confuses two different meanings of responsibility: capacity and obligation. The appellant owned and occupied the car park, controlled the lights in it, and decided when they would be on and when they would be off. But the relevant question is whether the appellant assumed an obligation to care for the security of persons in the position of the first respondent by protecting them from attack by third parties. [24] In Kondis v State Transport Authority , Mason J said: "The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety , in circumstances where the person affected might reasonably expect that due care will be exercised." (emphasis added)." 62 Finally I should refer to the exception, recognised in Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747, that where the police had committed criminal acts by fabricating evidence and conspiring to give false evidence no immunity is conferred. Such an exception for criminal acts by the police in course of a corrupt investigation is far from the present circumstances. OVERALL CONCLUSION 63 Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity. 64 The precise formulation of the asserted duty of care varied in the course of argument. But, however it is formulated, it is inconsistent with authority. It would create tensions in the law if not impair its coherence. The law recognises custodial liability to a prisoner on the gaoler's part as well as the distinct tort of false imprisonment. But it steadfastly denies civil remedy in relation to the police investigative function, save where there is an assumption of responsibility. I should add, so far as the office of the DPP is concerned, that while I do not suggest there that breach of the prosecutorial guidelines was deliberate, there was clearly a significant breach. One may hope that these unfortunate circumstances lead to greater attention by the authorities to the importance of providing the analyst's report promptly, particularly when delay can so injure the interests of someone in custody like the appellant. ORDERS 65 The appeal should be dismissed. In the circumstances, I would propose that there be no order as to costs, due to the uncaring neglect of the Police in particular towards the appellant. 66 IPP JA: I agree with Santow JA. 67 The actionable negligence of the police is said to be their failure, timeously, to inform the analytical laboratory that the appellant was in custody and that the magistrate had, on 26 March 1998, ordered a brief of evidence, including an analyst's certificate, to be served by 16 April 1998. The police advised the laboratory on 21 May 1998. This delay caused the appellant to remain in custody far longer than he should have. This was, neglect on the part of the police. The issue, however, is whether the police owed the appellant a duty of care. If they did, it was undoubtedly breached. 68 Our law has not yet recognised a duty of care of the kind asserted by the appellant (that is, in the circumstances in this case). The appellant submitted that a duty analogous to that recognised in Cekan v Haines (1990) 21 NSWLR 296 arose. But the police did not have custody of the appellant and no argument can be based on the analogy of the duty of care owed by a gaoler towards a person in custody. 69 In a novel case such as the present, policy considerations are paramount; they will determine whether a duty of care is to be recognised. 70 In my view, the policy factors identified by Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 349 preclude the recognition of a duty of care owed by the police to persons in custody to take care in carrying out their duties. Although his Lordship was there dealing with the duty of care owed by prosecution authorities to those who are being prosecuted, the policy factors he identified apply equally to the police. 71 To paraphrase Steyn LJ (at 349), the recognition of a duty of care of the kind contended for by the appellant would tend to have an inhibiting effect on the discharge by the police of their central functions of investigating and preventing crime and apprehending offenders. It would in some cases lead to a defensive approach by police to their multifarious duties. It would introduce a risk that police would act so as to protect themselves from claims of negligence. The police would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against them. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of the police would be diverted from concentrating on their prime functions. That would be likely to happen not only during the investigative and preventative processes, and the administrative tasks ancillary thereto, but also when the police are sued in negligence by aggrieved defendants. The police would be constantly enmeshed in an avalanche of civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the police and the quality of the services they provide. 72 In Tahche v Abboud (No 1) [2002] VSC 36, Smith J was concerned with whether police officers owed a duty to the plaintiff to disclose to him, alternatively to the Director of Public Prosecutions, certain information that would have assisted the plaintiff in defending the allegations of criminal conduct that had been made against him. His Honour suggested that a distinction should be drawn "between those officers who arguably had the responsibility to make decisions about whether to take the review of the plaintiff's conviction further and those officers whose task it was to gather the material and contribute to any discussion of it" (at [69]). 73 With respect to his Honour, I do not think that drawing such a distinction overcomes the policy factors identified in Elguzouli-Daf. Those factors apply irrespective of the particular task individual police officers are required to carry out. Furthermore, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Attempts to classify and compartmentalise police functions into one or other of these categories would be likely to generate uncertainty, sophistry and sterile litigation. 74 Finally, as regards the police, what was said in Tame v New South Wales (2002) 191 ALR 449 concerning a duty of care owed by police officers militates against the recognition of a duty of care in the circumstances obtaining in this case. 75 The actionable negligence of the DPP is said to be the omission of the prosecutor to inform the magistrate, at the appearances on 16 April 1998, 30 April 1998 and 14 May 1998, that the analytical laboratory should be requested to provide "priority analysis". 76 Again, there was neglect, this time on the part of the prosecution authorities. Again, however, the issue is whether the DPP owed the appellant a duty of care. If he did, it was undoubtedly breached. 77 Here, too, our law has not yet recognised a duty of care of the kind asserted by the appellant against the DPP. Once more, policy considerations are paramount and will determine whether a duty of care arises. 78 In my view the policy factors identified in Elguzouli-Daf preclude the existence of a duty of care on the part of the DPP. 79 Moreover, two other factors stand in the way of the duty of care contended for. Firstly, the DPP was appearing in court in an adversarial context and was not, in any way, representing the appellant. Secondly, the DPP was appearing as counsel at the hearings in question and was entitled to rely on the advocate's immunity. In Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692, Tudor Evans J expressed the opinion that the fact that the prosecutor and the accused were not on the same side made no difference to the application of advocate's immunity. That was so because the immunity is based on public policy; see Giannarelli v Wraith (1988) 165 CLR 543; Saif Ali v Sydney Mitchell & Company [1980] AC 198 at 212. 80 In the circumstances of this case there is no room for an argument based on an assumption of responsibility on the part of the police or the DPP which could give rise to a tortious duty of care owed to the appellant. On behalf of the appellant it was submitted that such an assumption of responsibility arose because of the order made by the magistrate on 25 March 1998 that a brief of evidence was to be served by 16 April 1998. Although the magistrate's order was not contested, it was neither a consent order nor was it based on any undertaking given by the police or the DPP. The making of an order by a court, otherwise than by consent or in terms of an undertaking given by the parties, does not, ordinarily, engender a tortious duty of care owed by one party to the litigation to another. 81 In Welsh v Chief Constable of the Merseyside Police, the prosecutor had expressly agreed that certain offences committed by the plaintiff should be taken into account at a later court hearing. The prosecutor also undertook to inform the court that the offences in question were to be taken into account but failed to do so. This failure led to further proceedings against the plaintiff relating to those offences. Tudor Evans J held that the prosecutor owed the plaintiff a duty of care by reason of the undertaking that had been given. The learned judge held that the advocate's immunity did not apply to the undertaking given by the prosecutor. These circumstances are to be distinguished from the present case where no undertaking whatever was given. 82 Accordingly, I agree with Santow JA that the appeal should be dismissed. 83 I also agree with Santow JA, for the reasons he has expressed, that there be no order as to costs. 84 McCOLL JA: I agree with the judgments of Santow and Ipp JJA which I have had the privilege of reading. ********** Last Modified: 03/31/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.