Hamilton v State of New South Wales (No 7) [2015] NSWSC 81

Supreme Court New South Wales

Medium Neutral Citation: Hamilton v State of New South Wales (No 7) [2015] NSWSC 81 Hearing dates: 4 – 8 August 2014; 9 – 10 February 2015 Date of orders: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Common Law Before: Campbell J Decision: Under s 135 of the Evidence Act 1995 (NSW) I reject tender of MFI 19. Catchwords: EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – whether only part of the prosecution brief of evidence, the subject of this tort action has probative value Legislation Cited: Evidence Act 1995 (NSW), s 135; Crimes Act 1900 (NSW) Cases Cited: A v State of New South Wales [2007] HCA 10; Birchmeier v Council of the Municipality of Rockdale (1935) 51 WN (NSW) 201 Category: Procedural and other rulings Parties: Thomas David Hamilton (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C Steirn SC with D Morgan (Plaintiff) P Bodor QC with SA Woods(Defendant)

Solicitors: Garling Lawyers (Plaintiff) Makinson & d'Apice Lawyers (Defendant) File Number(s): 2012/185616

REVISED EXTEMPORE Judgment 1. My ruling is that I reject the tender of MFI 19 pursuant to the provisions of s 135 of the Evidence Act 1995 (NSW) on the basis that the probative value of the tender is substantially outweighed by the danger that the evidence might be misleading. 2. I am prepared to say under s 192A, if there was a tender of MFI 20 I would admit it. I will give reasons. 3. I will return MFI 19 and 20 to the parties at the end of my reasons. 4. This is a claim, as I have said in numerous interlocutory judgments, amongst other things for damages for malicious prosecution. As is well understood, an element of that tort is that the plaintiff must prove that the prosecution was brought and maintained without reasonable or probable cause. According to the judgment of the High Court of Australia in A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [77] there are three critical points. The unanimous Court went on as follows: First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion? 1. As commonly occurs the police brought two charges against Mr Hamilton arising out of various events on the night of 12 December 2009. The first charge relevant in point of time is a charge under s 61 Crimes Act 1900 (NSW) for the common assault of a taxi driver, Mr Mahabub Siddiquee. The second charge is that in contravention of s 58 of the same Act Mr Hamilton resisted an officer while in the execution of his duty. 2. 6 The officer was Senior Constable Jared Mildenhall, who, upon hearing Mr Siddiquee's complaint pursued Mr Hamilton for the purpose of arresting him. It is only in respect of the second charge that the claim for damages for malicious prosecution is maintained. Mr Steirn of learned senior counsel appearing for the plaintiff argues by reference to the decision of the Full Court of the Supreme Court of New South Wales in Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 that it is a well‑established rule of law that where a person has been prosecuted in respect of two charges and subsequently brings an action for malicious prosecution in respect of one of the charges evidence tending to prove that reasonable and probable cause exists for prosecuting the other charge is inadmissible. 3. In Birchmeier Jordan CJ, (with whom Steven and Street JJ agreed) at p 202, said: It is well established that to be justified in prosecuting upon criminal charge the prosecutor must have information which leads him to believe and would lead a reasonable and prudent man to believe, that the accused is probably guilty of the offence. 1. I emphasise this: The prosecutor should consider the whole of the information at his disposal which throws any light on the crime and its probable perpetrator [omitting latin maxim] and if that information suggests to him or would suggest to a reasonable and prudent man that it would not be prudent to assume the probable guilt of the accused without further inquiries, then a prosecution cannot be regarded as reasonable unless those further inquiries are made. There is no doubt that if a person is prosecuted in respect of several matters, it is no defence to an action for malicious prosecution in respect of one of the matters to prove that reasonable and probable cause existed for prosecuting in respect of the others; and evidence directed to this purpose only is inadmissible [citations omitted]. But the mere fact that the evidence would tend to show reasonable and probable cause for the prosecutions which are not complained of does not make it inadmissible if it also goes to establish reasonable and probable cause for the prosecution which is complained of. The personality of the individual to whose guilt the available material points is always a matter to be taken into account in considering whether that material may fairly be acted upon or whether further investigation should be made [citation omitted]. 1. Later, at p 203, his Honour said: [T]he question whether a fact may be reasonably be taken into consideration in determining whether or not to prosecute is quite different from the question whether the fact may be proved in evidence on the prosecution: Hicks v Faulkner (1878) 8 QBD 167 at 173. 1. In Hicks, Hawkins J, delivering the judgment of the Court of Appeal, at p 173, said: The distinction between facts to establish actual guilt and those required to establish a bonâ fide belief in guilt should never be lost sight of in considering such cases as I am now discussing. Many facts admissible to prove the latter would be wholly inadmissible to prove the former. (See also Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 at 59 [105] by Gyles AJA; Hodgson and Campbell JJA agreeing on this point) The evidence tendered by Mr Steirn is contained in MFI 19. It is a selection of material from the brief of evidence that was served on the plaintiff in respect of both matters which were to be heard together and it omits the court attendance notice in respect of the common assault case and the police notebook versions of the statements of Senior Constables Mildenhall and Liebrand. The admission of those notebook statements I suppose may be neither here nor there (I have not inspected them closely against the printed documents). But significantly the tender omits the statement of the taxi driver, Mr Siddiquee as to what transpired in the cab and what he said before alighting from the cab to approach the police officers whose vehicle was stationary nearby. 1. Those matters, taken together with the circumstances which are contained in, for instance, Mr Mildenhall's statement are matters which are relevant in my judgment in the sense discussed by Sir Frederick Jordan in Birchmeier when expressing the qualification added to his statement of the general rule. In my judgment the full brief, MFI 20, represents the whole of the material which is relevant to the third critical question discussed by the High Court in A v New South Wales, that is what does the plaintiff demonstrate SC Mildenhall made of the material available to him when he issued the court attendance notices. 2. There is no doubt that what is contained in MFI 19 is relevant and therefore prima facie admissible. However, I am of the view that this is one of those rare, perhaps very rare, occasions where in a civil trial before a judge sitting alone the general discretion to exclude evidence conferred by s 135 of the Evidence Act is engaged. Given that this is an ultimate issue in the case and that it is necessary for the Court to examine the whole of the relevant material which may go beyond the admissible material in relation to the resist arrest charge, the probative value of MFI 19 is substantially outweighed by the danger that the evidence might be misleading, and I so rule. 3. Under s 135 of the Evidence Act 1995 I reject the tender of MFI 19. I return MFI 20 to the defendant.