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H v Friar HC Hamilton CP58/94 [2002] NZHC 1008 (13 September 2002)

Last Updated: 14 November 2013

THE IDENTITY OF THE PLAINTIFF IS SUPPRESSED FOR THE PURPOSES OF PUBLICATION OF THESE REASONS FOR JUDGMENT UNTIL THE TRIAL OF THE PROCEEDING

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY CP58/94

BETWEEN H
Plaintiff

AND (1) S P FRIAR
(2) ATTORNEY-GENERAL (IN RESPECT OF THE POLICE)
Defendants

Hearing: 11 September 2002

Appearances:
A L Hassall QC for plaintiff
J C Pike for defendants

Judgment: 13 September 2002

Solicitors:
Norris Ward McKinnon, Private Bag 3098, Hamilton for plaintiff
Crown Law Office, PO Box 5012, Wellington for defendants

JUDGMENT OF MASTER FAIRE

[1] There are two applications. The first is the plaintiff’s application pursuant to High Court Rule 426A. The second is the defendants’ application for summary judgment including leave to apply for summary judgment.

[2] Counsel were in agreement that the defendants’ application should be heard first. They also agreed that if the defendants’ application was refused it was appropriate that the plaintiff’s application be granted.

[3] Mr Hassall, in his written submissions, provided me with a short factual background summary. Mr Pike agreed with it. Accordingly, I adopt it for the purposes of providing the factual background to this application. The summary is as follows:

“The plaintiff is the mother of R.

On 24 October 1988 R then aged 15 months suffered injuries resulting in permanent brain damage.

On 1 November 1988 the plaintiff along with her husband was arrested and charged with wilfully ill treating R.

The plaintiff explained that R suffered his injuries consequent upon his head being trapped under the toilet seat, which explanation the police did not accept.

On 2 November 1988 the plaintiff with her husband appeared in the District Court and was bailed to a deposition hearing on 16 February 1989.

The plaintiff was tried before a jury on 24 July 1989 and was convicted and then sentenced to three years imprisonment.

The plaintiff appealed against the conviction and sentence and on 10 November 1989 the Court of Appeal delivered its decision saying:

‘We are satisfied that with a fairly balanced summing up no reasonable jury could properly find upon the evidence given that the applicant was guilty, we are satisfied there has been a miscarriage of justice. For these reasons leave to appeal against conviction and sentence is granted. The conviction and sentence are quashed and we direct a verdict of not guilty be entered on both counts.’

On 30 September 1994 the plaintiff filed and served a statement of claim seeking damages based on causes of action of malicious prosecution, misfeasance in public office and abuse of process and negligence.

On 27 November 1995 the defendants made application to have the statement of claim struck out pursuant to Rule 186 upon the grounds that the pleaded causes of action did not disclose any reasonable causes of action against the defendants.

On 12 July 1996 the plaintiff filed and served an amended statement of claim.

The application to strike out came on for hearing before Justice Doogue on 16 July 1996 when Justice Doogue decided:

‘The application is upheld in respect of the cause of action based upon negligence as already traversed. In other respects the application is dismissed.’

At page 11 of his judgment Justice Doogue said:

‘Here upon the pleading there is an allegation that the police were motivated in the actions and omissions taken by them in furthering the report of the Department of Social Welfare without proper consideration for the strength of the prosecution case. That may or may not enable the plaintiff to establish either malicious prosecution or misfeasance in public office. It is not for me at this time, however, to rule that that case should not proceed. It may well depend entirely upon the evidence at trial as to whether there is anything upon which the plaintiff can base her case or whether, as is alleged for the defendants, all that is involved is, at most, inadequate investigation and preparation by the police before the prosecution was commenced.’ (emphasis added)

The defendants appealed against the decision of Justice Doogue and their points of appeal read as follows:

‘1. The learned High Court Judge erred in law in his decision of 16 July 1996 in holding that an alleged improper motive for commencing and continuing a criminal prosecution could, when added to an allegation of inadequate investigation, amount to misfeasance in public office or malicious prosecution.

2. The learned Judge erred in law in declining to strike out the pleadings in misfeasance and malicious prosecution, even if the first point on appeal cannot be made out, on the basis that the decision to prosecute was made independently by a Crown Solicitor, and the District Court found a prima facie case, which ruling was not disturbed by an application under section 347 of the Crimes Act 1961.’

The Court of Appeal heard the defendants’ appeal on 3 December 1997 and dismissed the defendants’ appeal with costs to the plaintiff.

On 8 July 1999 almost twelve months after the plaintiff’s amended statement of claim was filed the defendants filed a statement of defence.

There was significant delay in the plaintiff being able to progress her claim as a result of difficulties with the Legal Aid authorities and the loss of the legal aid file and lack of response to letters and enquiries by the solicitors for the plaintiff leading to the need on the part of the plaintiff to make application pursuant to Rule 426A for leave to continue the proceeding which application was filed on 29 January 2002.

This application under Rule 426A was followed by the defendant’s present application for leave to apply for summary judgment filed on 8 March 2002.”

[4] Counsel were also in agreement that when the matter came before the Court of Appeal that Court did not provide written reasons for declining the appeal. That, in fact, was as a result of a request of the parties. It is apparent, however, and what Mr Pike says makes the application for summary judgment quite different from the strike out applications, is that neither Doogue J in the High Court nor the Court of Appeal had cognisance in any way of the deposition material. The strike out applications were argued solely on the pleadings.

[5] It is appropriate that I record the position because in a study of the judgment of Doogue J no reference is made to the fact that he was invited to consider the deposition evidence and declined to do so. Nor is there any evidence that the same invitation was extended to the Court of Appeal with the same result.

[6] As a result of counsel exchanging submissions before the hearing, Mr Pike invited me to determine one specific issue. That issue is: whether there is any evidence that the prosecution was brought without reasonable and probable cause.

[7] Both counsel drew attention to the essential ingredients of the tort of malicious prosecution, which is the first of the two remaining causes of action pleaded by the plaintiff against the two defendants. Both counsel acknowledged that one of those ingredients is the issue which Mr Pike says must be determined in this application, namely whether the prosecution was brought without reasonable and probable cause. Mr Pike submitted that if there was reasonable and proper cause in the bringing of the prosecution, then it follows that the plaintiff’s case based on the tort of malicious prosecution must fail. He went further and said, however, in reliance on Simpson v Attorney-General [1994] 3 NZLR 667, 675 that if in fact there was no absence of reasonable and proper cause for the bringing of the prosecution, the cause of action based on misfeasance in public office likewise should surely fail because such a cause of action requires as a minimum proof of bad faith and the bad faith relied upon in this case is the laying of the prosecution without reasonable and probable cause to prosecute. Mr Hassall did not dispute that proposition. In essence, then, if the defendant can establish there is no absence of reasonable and proper cause for the bringing of the prosecution, both causes of action would necessarily fail.

[8] The defendants’ application is an application for summary judgment by a defendant. The application is made in reliance on Rule 136(2) of the High Court Rules. In short, the defendant must satisfy the Court that none of the causes of action in the plaintiff’s statement of claim can succeed. Rule 136(2) and applications by defendant for summary judgment have been examined by the Court of Appeal in three report decisions: Westpac Banking Corporation v M M Kembla (NZ) Ltd [2001] 2 NZLR 298, Bernard v Space 2000 Ltd 15 PRNZ 338 and Attorney-General v Jones {2001) [2001] NZCA 322; 15 PRNZ 347. The cases establish that a defendant’s summary judgment application is appropriate only:

a) Where the defendant has a clear answer to the plaintiff which cannot be contradicted. It can be expressed another way, and that is where the defendant’s evidence is a complete defence to the plaintiff’s claim;

b) The onus remains on the defendant to show that none of the plaintiff’s causes of action can succeed. There is no obligation on the plaintiff to support its claim by adducing evidence unless the defendant’s evidence is such as to show that the claim cannot succeed;

c) The application is only appropriate where the substantive merits are clear and capable of summary disposal. Care will have to be taken if the main facts are in the possession of one party that an injustice is not caused by failing to allow a full examination which occurs with full interlocutory investigation and, of course, a trial with cross-examination;

d) It will not be appropriate, for example, if there is any material disputed facts which the Court is unable to determine on the material before it. In that case a full hearing is required;

e) The Court does not make a preliminary view of the evidence. The fact that the plaintiff’s case may show some weakness would not be sufficient. Jurisdiction is reserved for clear cases not for ones to be determined or arrived at on any fine balance of the available evidence.

[9] With those general propositions in mind I now examine the sole issue which Mr Pike invited me to consider, namely: does the evidence establish that there was no reasonable and probable cause for the bringing of the prosecution. At trial the plaintiff will have the onus of proving that the prosecution was brought without reasonable and probable cause. On this summary judgment application, bearing in mind the principles applicable, the onus is on the defendant to prove the reverse, namely the plaintiff will not be in a position to prove that there was absence of reasonable and probable cause for the bringing of the prosecution.

[10] The defendants have two hurdles to pass with this application. First, they must satisfy the Court that it is appropriate to grant to leave to bring this application. Second, they must satisfy the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[11] Where a rule requires leave to be obtained before a step is taken, the overriding consideration will usually be the interest of justice. Indeed, in this case, that clearly is the overriding consideration. Factors such as the reason for the delay, prejudice caused by the delay, and the merits of the case will often be important considerations in determining where the interests of justice lay. An application such as the present one, which is filed reasonably late in the life of a proceeding and after a series of interlocutory procedures, will undoubtedly cause prejudice to a plaintiff. There is, however, in this case, a complicating factor in that the right to bring an application for summary judgment was not available to the defendants at the time the strike out application was heard by Doogue J. That right only came into existence when the amendment to Rules 136 and 138 was introduced with the High Court Amendment Rules 1998 SR 1998/310 and with effect from 9 November 1998. Cases, one would have thought, would be rare indeed where the Court has refused a defended strike out application but nevertheless goes on to grant leave to allow the defendant, on practically the same grounds, to apply for summary judgment at a later stage. That is particularly so where the critical facts are facts which are principally, if not wholly, in the possession of the defendant in relation to the essential issue, as they are in this case.

[12] There have, in this case, been no less than seven judicial determinations involving the plaintiff. They are:

a) The deposition hearing on 16 February 1989 and the plaintiff’s concession there that there was a prima facie case to answer;

b) The plaintiff’s application at her trial on 24 July 1989 for an order that she be discharged under s 347 of the Crimes Act 1961, which application failed;

c) The plaintiff’s conviction and sentence following the jury trial;

d) The Court of Appeal judgment setting aside the conviction and directing that she should not stand trial again;

e) The defendants’ failure to obtain an order before Doogue J striking out the first two causes of action;

f) The defendants’ failure to overturn Doogue J’s judgment on appeal.

[13] When I consider:

a) the lateness of this application;

b) the last three determinations which I have referred to in the summary;

c) the fact that the critical evidence on whether there was reasonable and probable cause for bringing this prosecution, is evidence which is principally, if not exclusively, held by the defendants

I have grave reservations a to whether this case justifies the granting of leave to bring the application.

[14] I acknowledge the circumstances are somewhat unusual in that these defendants did not have the opportunity of bringing a summary judgment application in conjunction with the strike out application. Further, Doogue J made it plain that he was not issuing a ruling based on evidence. By contrast, the defendant does advance evidence on this application.

[15] Although I have reservations on whether leave is justified, I have decided to proceed to consider the application on its merits.

[16] Mr Hassall referred me to the helpful summary of position relating to reasonable and proper cause given by the Court of Appeal in Marley v Mitchell & Others (CA104/84, 19 September 1988). The following passages appear from the judgment:

At page 5:

“In what has become the classic statement of the meaning of the expression ‘reasonable and probable cause’ in this context, Hawkins J in Hicks v Faulkner 1878 8 QC 167, 171 said -

‘I should define reasonable and probable cause to be an honest belief in the guilt of the accused based upon a full conviction founded on reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.’

As Lord Denning pointed in Glinski v McIver [1962] AC726, 759 the reference to ‘guilt’ may be misleading. The defendant need not show that he honestly believed the plaintiff to be guilty but simply that he believed there to be a proper case to lay before the Court.”

Later in the judgment at page 9 the Court confirms that the test is an objective one and said at page 10:

“The nature of the test to be applied lies at the heart of the case. As is apparent from Hawkins J’s statement in Hicks v Faulkner the test is an objective one. It is not whether the prosecutor believed he had grounds, but whether he in fact had them. The matter was put clearly by Lord Denning in Glinski v McIver at p 579:

‘Honest belief in guilt is no justification for a prosecution if there is nothing to found it on. His belief may be based on the most flimsy and inadequate grounds, which would not stand examination for a moment in a Court of law. In that case he would have no reasonable and probable cause for the prosecution. He may think he has probable cause, but that is not sufficient. He must have probable cause in fact. In this branch of the law, at any rate, we may safely say with Lord Atkins that the words ‘if a man has reasonable cause’ do not mean ‘if he thinks he has’.’ Se Liversidge v Anderson.

The objective nature of the test does not however mean that a defendant may rely upon grounds which were not known to him at the time. It is the reasonableness of the grounds upon which he acted that is relevant:

‘When the Judge knows the facts operating on the prosecutor’s mind he must then decide whether they afford reasonable or probable cause of prosecuting the accused per Lord Atkins in Herniman v Smith [1938] AC 305, 317’.”

[17] The first defendant, Mr Friar, filed an affidavit in support. He advised that he investigated the circumstances of the injury to the child. He consulted with medical practitioners who saw the child at Taupo and Hamilton. He said that he discussed the plaintiff’s explanation for the injury to the child with the medical practitioners. He said that he sought ESR advice. As a result of his inquiries he considered that the plaintiff had strangled her son. He is now hampered because of the passage of time that has passed. He said that the investigation file has been either misplaced or lost. He has had access to the prosecution file. His affidavit exhibits statements and material contained on the prosecution file. He also exhibits the depositions statements and the notes of evidence from the District Court jury trial.

[18] If I confine the investigation to simply considering the material available at the time the charge was laid, that is 1 November 1998, the following points emerge from the material produced:

a) R suffered injuries consistent with significant pressure in the area of his neck resulting in bruising from ear to ear;

b) The plaintiff’s statement said:

i) That R had been found with his head

Caught between the seat and the bowl

ii) When she lifted the seat she had to grab him because he started to fall;

iii) She did not think he was conscious;

c) The plaintiff’s husband, in an oral statement to Detective Sergeant Friar confirmed the plaintiff’s account that the seat had caused the injuries to the child. He said that he did not think that the plaintiff could have assaulted the child without him noticing it;

d) A Waikato Hospital doctor, Doctor Minto, advised that the rash on R’s neck was consistent with strangling or a compression of some form;

e) Another Waikato Hospital doctor, Doctor Tomlinson, a paediatrician, provided a summary of R’s condition and expressed the view that it was difficult to believe that a plastic seat could have caused the injury.

[19] That summary fails to identify any specific cause for the injuries which R had suffered other than those given by the plaintiff. It is clear that the police decided that further inquiries should be undertaken even though a charge had been laid. A report was obtained from the DSIR. It is significant that Mr D M Firth, in that report which is dated 21 March 1989, drew two specific conclusions, namely

“1. It is possible for a fifteen month old child to get his head lodged between the toilet bowl and seat;

2. If the child was to lose its footing and its head was lodged between the toilet bowl and seat, the force of the weight of the child’s body would act on its throat.”

Contrary to disproving the theory that the toilet seat was one of the causes of R’s injuries, the DSIR investigation tends to support the plaintiff’s account.

[20] It is difficult to see how the defendants could have concluded that it was the lightness of the plastic seat which caused the injuries. That, after all, was not the specific account given by the plaintiff. Even if the plaintiff’s account is ignored, I cannot find any other material in the statements and material which were available to the defendants, up to and including the time when the charge was laid, which discloses how the injury could have been caused to R other than, of course, by the plaintiff’s explanation. Certainly, the material that has been made available to me does not shut the door, or provide for me, what has been called and “open and shut” answer to the plaintiff’s case on the question of whether there was reasonable and probable cause for bringing the prosecution.

[21] Precisely what Detective Sergeant Friar and Constable Greer were considering and why they specifically determined that the charge should be laid is a matter entirely known to them. I have reached the conclusion, after studying the statements, that the material available at the time does not suggest that the plaintiff was the cause of R’s injuries. The inference then is that some other material must have been taken into account when a decision was made to lay the charges.

[22] Mr Hassall quoted extensively from the Court of Appeal decision which set aside the conviction. I had deliberately not gone into that exercise because, to a certain extent, it involved a consideration of material that came to light at a later stage. What the evidence, which the Court of Appeal reviewed, discloses, however, is that if there had been greater examination of the doctors and those who provided the report from the DSIR there must have been a strong possibility that a reasonable inquirer would not have laid the charges.

Conclusions

[23] For these reasons I am led to the conclusion that the defendants cannot satisfy the onus that the plaintiff’s cause of action would not succeed. In my view, a final determination of the issue of reasonable and proper cause for the prosecution should be determined at trial. The Court will then have the advantage of receiving all the explanations that are available, including those extracted in cross-examination from those responsible for the laying of the charge.

[24] The defendants’ application for summary judgment is dismissed.

Costs

[25] The plaintiff has been successful in opposing this application. I order that the defendants pay the plaintiff’s costs based on Category 2 Band B for an opposed summary judgment application together with disbursements as fixed by the Registrar.

Directions Conference

[26] A telephone conference shall be held with counsel at 9 am on Wednesday, 9 October 2002. Counsel shall make the appropriate arrangements with the Registrar for the telephone connection. The purpose of the conference is to confirm that there are no outstanding interlocutory applications and, if that is the case, to set trial directions.