Supreme Court New South Wales Medium Neutral Citation: PFC v State of New South Wales & Anor [2015] NSWSC 1507 Hearing dates: 3 September 2015 Date of orders: 15 October 2015 Decision date: 15 October 2015 Jurisdiction: Common Law Before: Fagan J Decision: (1) The Summons is dismissed. (2) Any application by the Defendants for costs is to be made by filing within 14 days of publication of these reasons a Notice of Motion stating the amount of a specified gross sum claimed for costs and seeking an order under s 98(4)(c), Civil Procedure Act 2005 (NSW). (3) Any such Notice of Motion must be accompanied by an affidavit substantiating the amount of costs claimed and evidence that a copy of the Notice of Motion and of the supporting affidavit have been served upon the Plaintiff. (4) The Plaintiff may file any evidence in reply to such a costs application, on affidavit, and make any submission in response in writing, to be filed in the Registry within 28 days of publication of these reasons. (5) Any such Notice of Motion is to be dealt with on the papers. (6) On the ground that it is necessary to avoid causing undue distress or embarrassment to a witness who gave evidence in the trial of the Plaintiff in the District Court in May and June 2009 it is ordered that the Plaintiff be identified only as "PFC" in the title of this judgment and that any further particulars of his name be suppressed. Catchwords: PRACTICE AND PROCEDURE – notice of motion for expedition of proceedings – application for leave to sue by person convicted of serious indictable offence – whether proceedings would be an abuse of process – whether prima facie grounds for proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Rules (NSW) Felons (Civil Proceedings) Act 1981 (NSW) Interpretation Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Hunter v Chief Constable of West Midlands [1982] AC 529 PFC v R (No. 2) [2014] NSWCCA 241 PFC v R [2011] NSWCCA 275 R v PFC [2011] NSWCCA 117 Reichel v Magrath (1889) 14 App Cas 665 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 277 CLR 378 Category: Principal judgment Parties: PFC (Plaintiff) State of New South Wales (First Defendant) Director of Public Prosecutions New South Wales (Second Defendant) Representation: Counsel: Mr AN Williams (Defendant) Solicitors: Plaintiff in person via video link Crown Solicitor for NSW (First and Second Defendants) File Number(s): 2015/219322 Publication restriction: Name of Plaintiff suppressed Judgment 1. On 27 July 2015 the Plaintiff filed a Summons seeking leave under the Felons (Civil Proceedings) Act 1981 (NSW) to commence an action against the State of New South Wales and the Director of Public Prosecutions. On 17 August 2015 he filed a Notice of Motion by which he sought that proceedings on his Summons be expedited pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 51.60. The Plaintiff's requirement for leave 1. In May and June 2009 the Plaintiff was tried in the District Court on 29 counts of aggravated indecent assault upon children, sexual intercourse with children aged between 10 and 16 years, doing acts with intent to pervert the course of justice and a small number of other offences. On 26 June 2009 he was convicted of 17 offences of various forms of sexual assault upon children committed between 1997 and 2006 and 6 offences of acting with intent to pervert the course of justice committed between late 2003 and late 2006. 2. On 21 December 2009 the trial judge sentenced the Plaintiff to a total effective non-parole period of 10 years 9 months with a balance of the term of 3 years 8 months. The non-parole period will expire on 7 June 2020. The earliest date upon which he may be released will be immediately following that expiry. 3. A Crown appeal against the inadequacy of various of the sentences imposed for individual offences and against the inadequacy of the effective total term and total non-parole period was unsuccessful: R v PFC [2011] NSWCCA 117, decision handed down on 25 May 2011. The Plaintiff appealed against his conviction and this also was dismissed: PFC v R [2011] NSWCCA 275, decision handed down on 15 December 2011. 4. On 7 March 2012 the Plaintiff filed an application pursuant to r 50C of the Criminal Appeal Rules (NSW) to re-open his appeal against conviction. That application was dismissed: PFC v R (No. 2) [2014] NSWCCA 241, decision handed down on 30 October 2014. He has filed a further application under r 50C which has not yet been heard. 5. The Plaintiff has filed in support of both his Summons and his expedition application an affidavit dated 24 July 2015 and a revised affidavit dated 17 August 2015. Both of these were filed unsworn because, according to the Plaintiff, he has no access to a Justice of the Peace before whom they could be sworn in the prison at Goulburn where he is serving his sentence. He adopted both affidavits on oath when he appeared before me self-represented, by video link from Goulburn Correctional Centre, on the hearing of the expedition application on 3 September 2015. 6. Also in support of his Summons and Notice of Motion the Plaintiff has tendered a draft Statement of Claim dated 18 August 2015. This pleads the causes of action upon which the Plaintiff would commence substantive proceedings against the Defendants if he should obtain leave to commence. 7. For present purposes the relevant provisions of the Felons (Civil Proceedings) Act 1981 are as follows: "4 Leave to sue required for persons convicted of serious indictable offences A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. 5 Grant of leave A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. … 7 Right of appearance At the hearing or determination of an application or appeal under this Act, except by the leave of the court to which the application or appeal is made: (a) the applicant or appellant, as the case may be, is not entitled to appear in person, and (b) the person who would, if the proceedings to the institution of which the application or appeal relates were instituted, be the defendant in those proceedings, is not entitled to appear or be represented." 1. A "serious indictable offence" as referred to in s 4 means an offence "punishable by imprisonment for life or for a term of 5 years or more": s 21, Interpretation Act 1987 (NSW). The offences of which the Plaintiff was convicted were against the following sections of the Crimes Act 1900 (NSW): ss 61M(1); 66C(1), (3) and (4); 91G(1) and 319 – all of which are serious indictable offences. Grant of expedition and final hearing of leave application 1. In the course of the Plaintiff arguing in favour of expedition on 3 September 2015 he was given full opportunity to explain the nature of the case which he wishes to bring against the State of New South Wales and the Director of Public Prosecutions. Accordingly, for reasons which I gave on that day, I directed that the proceedings on the Plaintiff's Summons be expedited and that the hearing of the Summons on a final basis take place together with the hearing of the Plaintiff's Notice of Motion for expedition. I treated all evidence and submissions which had been received in relation to the Notice of Motion as evidence and submissions on the final hearing of the Summons. 2. Pursuant to s 7, Felons (Civil Proceedings) Act 1981 I gave leave to the Plaintiff to appear in person on the hearing of the Summons on that day. I also gave leave to counsel for the proposed Defendants, who appeared to argue the question of expedition, also to appear and present arguments in relation to the Plaintiff's application on his Summons for leave to file his Statement of Claim. The Plaintiff's proposed causes of action 1. In the proposed Statement of Claim, pars 3 to 11 appear under a heading "False arrest/false imprisonment". From those paragraphs and the Plaintiff's affidavits it appears that he alleges that in early May 2004 a boy referred to as "SB", then aged 15 years, was "placed in the Plaintiff's temporary care by the Department of Community Services". The Plaintiff alleges that in November 2006 officers from Taree Police Station arrested him on a charge of having had sexual intercourse with SB between 1 August 2003 and 30 November 2003 in circumstances of aggravation, "namely that [SB] was under the authority" of the Plaintiff: s 66C(4) and s 66C(5)(d), Crimes Act 1900. The relevant part of s 66C(5) is as follows: "(5) In this section, circumstances of aggravation means circumstances in which: … (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender …" 1. The Plaintiff alleges that this charge was dismissed by the Magistrate sitting at Taree on 23 May 2007, upon the Crown offering no evidence. At the commencement of the Plaintiff's criminal trial earlier referred to, on 11 May 2009, the Plaintiff says that he was arraigned on the same charge (together with the other 28 charges). This was Count 12. It is one of the 23 counts upon which he was convicted on 26 June 2009 and for which he was sentenced on 22 December 2009. The sentence for this particular offence was a fixed term of 4 years 6 months commencing 8 September 2011 and expiring 7 March 2016: Count 12 is referred to in the table of sentences at [5] of the judgment in R v PFC [2011] NSWCCA 117. 2. The cause of action upon facts pleaded in pars 3 to 11 of the Statement of Claim, for which the Plaintiff now seeks leave, is for damages for false imprisonment. This refers to his original arrest on 7 November 2006 and, perhaps, to some subsequent period of remand in custody up to the date when the Taree Magistrate is said to have dismissed the charge on 23 May 2007. The claim may also be intended to be made in relation to any period of custody on remand or under sentence in relation to his prosecution for this charge on indictment in the District Court. 3. For the Plaintiff to prove the tort of false imprisonment either against the officers who originally arrested him on 7 November 2006 or against any officers who were subsequently involved in his rearrest and remand when the charge was later included on the indictment of 11 May 2009, the Plaintiff would have to allege and prove that the officers acted without lawful justification. Lawful arrest is, of course, justification. It is apparent from the Plaintiff's affidavit filed 17 August 2015 that the basis upon which he asserts the initial arrest and any subsequent arrest and remand were unlawful is that the charge was unsustainable. He says the charge was of aggravated sexual intercourse with a 15 year old boy between 1 August 2003 and 30 November 2003 at a time when the alleged circumstance of aggravation, namely that the boy was under the Plaintiff's authority, did not obtain. The Plaintiff contends that SB was never under his authority until placed in his care by the Department of Community Services on 10 May 2004. 4. Section 66C is within Div 10 of Pt 3 of the Crimes Act 1900. Section 61H(2) provides that for the purposes of Div 10 "a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person". The Plaintiff's submissions and proposed Statement of Claim proceed upon the misconception that for the purposes of Count 12 the circumstance of aggravation provided for in s 66C(5)(d) could not be made out in respect of any date before 10 May 2004 when, as he alleges, the Department "placed [SB] in my care". Contrary to this view it was well open to the Crown to prove, including through evidence of SB himself, that by reason of circumstances other than and preceding the placement by the Department, SB should be regarded as having been "in the care, or under the supervision or authority" of the Plaintiff in the charge period, 1 August 2003 to 30 November 2003. 5. Further, as the Plaintiff proposes to put his case of false imprisonment upon the basis that Count 12 was unsustainable and therefore could not have been the justification for his arrest, litigating this issue would necessarily require that the Plaintiff prove he was wrongly convicted of the offence on 26 June 2009. It is an abuse of process to mount a cause of action which involves calling into question a conviction entered in a court of appropriate jurisdiction following trial: Reichel v Magrath (1889) 14 App Cas 665; Hunter v Chief Constable of West Midlands [1982] AC 529; Walton v Gardiner (1993) 277 CLR 378 at 393; Rogers v The Queen (1994) 181 CLR 251 at 255 and 274; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198. Hence, for the Plaintiff to commence proceedings on a Statement of Claim in the form proposed would be an abuse of process so far as the cause of action pleaded in pars 3-11 is concerned. 6. Under the heading "Malicious prosecution", par 12 purports to repeat the allegations in pars 3-11 and "states that the said prosecution [ie. on Count 12] was malicious". Paragraph 13 alleges that the prosecution of himself on this count was continued "without reasonable and probable cause", that the detectives who were the informants with respect to it "knew that there was no case for the Plaintiff to meet in relation to the said charge" and that evidence of SB not having been placed in the Plaintiff's care until 10 May 2004 was at all times in possession of the responsible police officers and "proved categorically and beyond any doubt that the said charge was an absolute impossibility". 7. This cause of action for malicious prosecution could not possibly succeed for the reason that the proceedings against the Plaintiff on Count 12 did not terminate in his favour. He was convicted. Within the meaning of s 5, Felons (Civil Proceedings) Act 1981 there is no "prima facie ground for the proceedings" so far as they include a cause of action for malicious prosecution. 8. Under the heading "Deceit" the Plaintiff's proposed Statement of Claim contains a single paragraph numbered 14 which alleges that the prosecution of himself on Count 12 and his conviction were a direct result of deceit by the investigating police officers, constituted by them "wilfully and deliberately concealing the true exculpatory evidence [namely, that SB was not placed in the Plaintiff's care until 10 May 2004] from the Crown, the trial judge and the jury". 9. According to the principle of the cases cited at [17] above, the pursuit of this cause of action would be an abuse of process because it would depend upon the Plaintiff alleging and proving that there was "exculpatory evidence" capable of showing that Count 12 was unsustainable and that the Plaintiff suffered damage by reason of this being concealed. This would again call into question the conviction entered against him in the District Court. Further, there is no cause of action known to the law in the terms pleaded by the Plaintiff. The tort of deceit is committed against a plaintiff when some statement or conduct of a defendant conveys false information or a false appearance to the plaintiff and he is induced to act upon it to his detriment. The action in deceit does not lie upon an allegation that misleading statements or conduct of a defendant were directed to third parties (the Crown, the trial judge or the jury in the present case), causing those parties either to suffer loss or to be deflected from their lawful duty. 10. Leave should not be granted to the Plaintiff to file a Statement of Claim which would include this allegation because it would involve both an abuse of process and the mounting of a claim for which there is no prima facie ground. 11. Under the heading "Abuse of process" the Plaintiff pleads in pars 15 and 16 of the Statement of Claim that investigating police, by causing him to be charged with Count 12, utilised the criminal process "so as to effect an object not properly within the scope of such process". Particulars of this allegation in the draft pleading allege that the police allowed Count 12 to go forward "knowing it to be false, to mislead and taint the jury's perception of the evidence and of the Plaintiff"; "in an effort to justify the unlawful arrest and charging of the Plaintiff"; "to conceal previous improper and/or unconscionable conduct" on their part; "in an attempt to intimidate the Plaintiff into withdrawing" earlier civil proceedings that he had bought against police and to "occasion the Plaintiff financial harm and loss". 12. These paragraphs are in essence a repetition of the pleading of malicious prosecution. That is the only cause of action to which these allegations could be referrable. The particulars summarised above are various ways in which the Plaintiff would allege that the prosecution was malicious. That is, that he was not prosecuted on Count 12 for the purpose of bringing him to justice in respect of the subject matter of that count but for ulterior and improper purposes. 13. For the reasons already given in relation to the Plaintiff's proposed claim for damages for malicious prosecution (see [18] and [19] above), leave cannot be granted for the Plaintiff to file a Statement of Claim containing pars 15 and 16. 14. Under the heading "Negligence", pars 17 and 18 of the Statement of Claim assert that the Director of Public Prosecutions and the solicitor and Crown counsel who prosecuted the case had in their possession prior to and during the trial evidence which the Plaintiff asserts was "exculpatory". Namely, evidence that the Department of Community Services did not place SB in his care until May 2004. He alleges that "through negligence and/or flagrant incompetence" these law officers persisted with Count 12 and "withheld that exculpatory evidence from the trial judge and jury". 15. The Plaintiff further asserts that this led to his "unjust conviction" on Count 12 and that that in turn "contributed to the Plaintiff being found guilty on 22 of the other 29 counts". Paragraph 19 of the proposed Statement of Claim alleges that on these facts the Defendants were "guilty of the tort of negligence" and that as a result he suffered loss and damage. 16. Damages are of the essence of a cause of action in negligence. In order to allege damage on this pleading the Plaintiff would have to assert that he was wrongly convicted on Count 12. For him to do so would be an abuse of process, according to the authorities cited at [17] above. Further, none of the prosecution legal personnel referred to owed to the Plaintiff in his capacity as the accused any duty of care at common law such as could support a claim in damages for breach: Application of Potier [2012] NSWCA 222 at [28]-[34]. It follows that the filing of a Statement of Claim containing pars 17-19 would both constitute an abuse of an be unsupported by any "prima facie ground" within the meaning of s 5 of the Act. 17. Of the remaining paragraphs of the proposed Statement of Claim, pars 1 and 2 are merely introductory allegations of vicarious liability of the State for police officers and of the Director of Public Prosecutions for Crown legal personnel. Paragraphs 20-28 are concerned with relief – aggravated damages, exemplary damages, damages for economic loss, legal costs, medical expenses, general damages and interest. These paragraphs do not purport to disclose, of themselves, any cause of action. 18. For the above reasons leave will not be granted to the Plaintiff to commence proceedings by the filing of his proposed Statement of Claim. Given that the Plaintiff will remain incarcerated at least until 7 June 2020, the making of any order for costs against him would appear futile. However if the Defendants wish to seek such an order they may do so in accordance with the directions now made. It should be apparent from a consideration of these directions that making such an application would most likely do no more than add to the burden of irrecoverable costs already incurred in this proceeding. 19. Identification of the Plaintiff, in conjunction with the recitation of facts in these reasons, could lead to identification of at least one of the complainants who gave evidence in the trial of the Plaintiff in the District Court. In order to avoid such identification of the witness and to avert distress and embarrassment to him, I will make an order under s 7, Court Suppression and Non-publication Orders Act 2010 (NSW) that the Plaintiff's name not be published and that he be referred to as PFC in the title of this judgment. 20. The orders of the Court are: 1. The Summons is dismissed. 2. Any application by the Defendants for costs is to be made by filing within 14 days of publication of these reasons a Notice of Motion stating the amount of a specified gross sum claimed for costs and seeking an order under s 98(4)(c), Civil Procedure Act 2005 (NSW). 3. Any such Notice of Motion must be accompanied by an affidavit substantiating the amount of costs claimed and evidence that a copy of the Notice of Motion and of the supporting affidavit have been served upon the Plaintiff. 4. The Plaintiff may file any evidence in reply to such a costs application, on affidavit, and make any submission in response in writing, to be filed in the Registry within 28 days of publication of these reasons. 5. Any such Notice of Motion is to be dealt with on the papers. 6. On the ground that it is necessary to avoid causing undue distress or embarrassment to a witness who gave evidence in the trial of the Plaintiff in the District Court in May and June 2009 it is ordered that the Plaintiff be identified only as "PFC" in the title of this judgment and that any further particulars of his name be suppressed. ********** 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. Decision last updated: 15 October 2015