Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Beckett v The State of New South Wales [2012] NSWCA 114
• Hearing dates: 20 March 2012
• Decision date: 02 May 2012
• Before: Beazley JA at 1; McColl JA at 2; Tobias AJA at 3

Decision

(a) Grant the appellant leave to appeal and the respondent leave to cross-appeal;

(b) Dismiss the appeal and cross-appeal, in each case with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - Malicious prosecution - Whether onus on appellant to prove innocence - Whether the indictment was spent or extant - Whether exercise of DPP's statutory power under s7(2)(b) Director of Public Prosecutions Act 1986 (NSW) was the entry of a nolle prosequi - whether the Court of Appeal was bound by the decision of Davis v Gell (1924) 35 CLR 275
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Criminal Procedure Act 1986; Director of Public Prosecutions Act 1986
• Cases Cited: A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500; Abrath v North Eastern Railway Co (1883) 11 QBD 440; R v Allen (1862) 31 L.J.M.C 129 [also cited (1862) 1 B & S 850; (1862) 121 ER 929]; Beckett v The State of New South Wales (No 1) [2011] NSWSC 818; R v Catt (1993) 68 A Crim R 189; R v Catt [2005] NSWCCA 279; Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527; Davis v Gell (1924) 35 CLR 275; R v GKA (1998) 99 A Crim R 491; Earnshaw v Loy (No 1) [1959] VR 248; Gilchrist v Gardener (1891) 8 WN(NSW) 21; R v Howard [1992] 29 NSWLR 242; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; Mann v Jacombe [1961] NSWR 273; (1961) 78 WN(NSW) 635; R v Nicholas (1989) 45 A Crim R 299; Noye v Robbins and Crimmins [2007] WASC 98; Skrijel v Mengler [2003] VSC 270; Van Heeren v Cooper [1999] 1 NZLR 731
• Texts Cited: Balkin and Davis, Law of Torts, 4th ed (2009) LexisNexis Butterworths; Blay et al, Torts Law in Principle", 4th ed (2005) Lawbook Co; Debelle J, Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; G P Donovan, The Effect of a nolle prosequi in Relation to the Action for Malicious Prosecution: (1939) 12 ALJ 457; Sappideen and Vines, Fleming's Law of Torts, 10th ed (2011) Thomson Reuters; Selwyn's, Nisi Prius 13 ed Vol II; Vout, The Laws of Australia on Torts, 2nd ed (2007) Thomson Lawbook Co
• Category: Principal judgment
• Parties: Roseanne BECKETT (appellant/ cross-respondent); THE STATE OF NEW SOUTH WALES (respondent/ cross-appellant)
• Representation: Counsel: P E Blacket SC/ K T Nomchong (appellant/ cross respondent); W G Roser SC/ P J Saidi (respondent/ cross-appellant); Solicitors: Turner Freeman (appellant/ cross-respondent); I V Knight, Crown Solicitor (respondent/ cross-appellant)
• File Number(s): 2008/289411

Decision under appeal

• Citation: Beckett v The State of New South Wales (No 1) [2011] NSWSC 818
• Date of Decision: 2011-08-05 00:00:00
• Before: Davies J
• File Number(s): 2008/289411

HEADNOTE

On 11 September 1991 the appellant was convicted by a jury on a number of counts for various offences, and she was later sentenced to a lengthy term of imprisonment. In July 2001, on the appellant's petition, the Attorney General referred the matter to the Court of Criminal Appeal pursuant to s 474C(1)(b) of the Crimes Act 1900. It followed that in August 2005 the appellant was acquitted on one count and her conviction on five counts were quashed and a new trial was ordered in relation to those counts. On 22 September 2005 the Director of Public Prosecutions directed that there be no further proceedings against the appellant on all outstanding charges. Thereafter, she instituted proceedings against the respondent for malicious prosecution.

The respondent filed a notice of motion seeking the separate determination of two questions. The first question was in regard to the counts that were quashed and the second question was in regard to the count of which she was acquitted. Each question sought an answer to whether the appellant in the malicious prosecution proceedings needed to prove her innocence in relation to each of the counts.

On 5 August 2011 Davies J found the first of those questions in favour of the respondent and the second in favour of the appellant. The appellant sought leave to appeal against the primary judge's answer to the first question, and the respondent sought leave to cross appeal his Honour's answer to the second question. The applications for leave and the appeals were heard concurrently.

The issues for determination on appeal were:

I. The status of the indictment - whether at the time the Director made his decision that there be no further proceedings the indictment was spent or extant.

II. Whether the Director's decision of 22 September 2005 should be regarded as the entry of a nolle prosequi pursuant to 7(2)(b) Director of Public Prosecutions Act or a decision whereby he declined to found a bill pursuant to 7(2)(a) DPP Act.

III. Whether the Court of Appeal is bound in this case by the decision of the High Court in Davis v Gell (1924) 35 CLR 275.

IV. In circumstances where the Court of Criminal Appeal had acquitted the appellant in relation to one count, whether it was necessary for the appellant to prove her innocence to succeed in relation to that count in the malicious prosecution proceedings.

HELD: (Per Tobias AJA, Beazley JA and McColl JA agreeing)

1. Leave be granted.

2. Upon the appellant's conviction on numerous counts being quashed by the Court of Criminal Appeal and a new trial ordered, the indictment containing those counts remained on foot and was extant as at the time the Director determined not to proceed further.

3. As the indictment was extant as at 22 September 2005, it was open to the Director pursuant to s 7(2)(b) of the DPP Act to enter a nolle prosequi on those counts in respect of which the Court of Criminal Appeal had ordered a new trial.

4. The direction of the Director on that date that no further proceedings be taken against the appellant on the outstanding charges constituted the entry of a nolle prosequi: R v Howard [1992] 29 NSWLR 242 at 249 D-F; R v GKA (1998) 99 A Crim R 491 at 494 per Cole JA with whom Gleeson CJ and Barr J agreed; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [181] per Wood CJ at CL; Considered.

5. As the Court of Appeal is bound by the decision of the High Court in Davis v Gell, it is necessary for the appellant in her action for malicious prosecution to prove her innocence notwithstanding that the entry by the Director of a nolle prosequi in respect of those charges terminated the proceedings against her in her favour.

6. As a consequence of the decision of the High Court in Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527, there was no proper basis for extending the effect of the decision in Davis v Gell to the acquittal of the appellant on the one count. Therefore the appellant does not have to prove her innocence in relation to that count.

7. The appeal and cross appeal be dismissed, in each case with costs.

Judgment

1 BEAZLEY JA: I agree with Tobias AJA.

2 McCOLL JA: I agree with Tobias AJA.

3 TOBIAS AJA: On 11 September 1991 the appellant was convicted by a jury on a number of counts alleging various offences and later sentenced to a lengthy term of imprisonment. An appeal against her conviction was dismissed. In July 2001 the Attorney-General, on the appellant's petition pursuant to s 474B of the Crimes Act 1900, referred the matter to the Court of Criminal Appeal pursuant to s 474C(1)(b) of the Crimes Act. An inquiry was held by a Judge and the matter was returned to the Court of Criminal Appeal which, in August 2005, quashed the appellant's convictions on five counts and ordered that there be a new trial in relation to those counts.

4 On 22 September 2005 the Director of Public Prosecutions (Director or DPP depending on context) directed that there be no further proceedings against the appellant on all outstanding charges. Thereafter, she instituted proceedings against the respondent for malicious prosecution. On 16 May 2011 the respondent filed a notice of motion seeking the separate determination of two questions, each of which sought an answer to whether the appellant in the malicious prosecution proceedings needed to prove her innocence in relation to each of the counts in respect of which a new trial had been ordered by the Court of Criminal Appeal.

5 On 5 August 2011 Davies J answered the first of those questions in favour of the respondent and the second in favour of the appellant: Beckett v The State of New South Wales (No 1) [2011] NSWSC 818.

6 On 23 August 2011 the appellant filed a summons seeking leave to appeal against the primary judge's answer to the first question. On 16 September 2011 the respondent filed a summons seeking leave to cross-appeal with respect to his Honour's answer to the second question. The applications for leave and the appeals were heard concurrently. In my opinion leave to appeal and cross-appeal should be granted but both the appeal and cross-appeal should be dismissed with costs.

The Background Facts

7 The background facts are not in dispute. It is convenient for me to reproduce them, with some amendments, from their recitation by the primary judge at [4] - [15] of his reasons.

8 On 24 August 1989 the appellant was arrested and charged in relation to a number of matters. On 14 May 1990 committal proceedings commenced in Taree Local Court in relation to the indictable offences.

9 On 27 July 1990 Magistrate Evans ordered the appellant to stand trial in the Supreme Court in relation to a number of the allegations which subsequently formed the following counts in the indictment presented at her trial:

Count 1: [Rock Incident]:

On 2 May 1988 at Taree maliciously did wound Barry Catt (s 35 Crimes Act 1900).

Count 2: [False Evidence About The Rock Incident]:

On 3 July 1989 at Taree in the Local Court before Mr G.P. O'Keefe, Magistrate, on an occasion when truth of the same was material, did knowingly and willingly falsely swear in substance, as follows, that is to say, that she, Roseanne Catt, at no time struck Barry Catt with a rock (s 327 Crimes Act 1900).

Count 3: [Swan's Crossing Incident]:

Between 2 March and 30 March 1989 at Swans Crossing maliciously did wound Barry Catt (s 35 Crimes Act 1900).

Count 4: [Cricket Bat Incident]:

On 5 May 1989 at Taree did assault Barry Catt thereby occasioning to him actual bodily harm (s 59 Crimes Act 1900).

Count 5: [Drug Incident]:

Between 1 May and 31 July 1989 at Taree, maliciously did cause to be taken by Barry Catt a noxious thing, namely, lithium, and thereby did endanger the life of Barry Catt (s 39 Crimes Act 1900).

Count 6: [James Morris - RSL Club]:

On 28 July 1989 at Taree did solicit James Morris to murder Barry Catt (s 26 Crimes Act 1900).

Count 7: [Vernon Taylor-1 Cornwall Street, Taree]:

Between 15 July and 16 August 1989 at Taree did solicit Vernon Taylor to murder Barry Catt (s 26 Crimes Act 1900).

Count 9: [Pistol]:

On or about 24 August 1989 at Taree did have in her possession a pistol, namely, a Hopkins and Allen .32 calibre revolver, she then not being the holder of a licence for such pistol (s 25(l) Firearms and Dangerous Weapons Act 1973).

10 In addition, Count 8 in the indictment presented at trial was as follows:

On or about 24 June 1989 at Taree did encourage Leslie O'Brien to murder Barry Catt (s 26 Crimes Act 1900).

On that matter the Magistrate did not commit the appellant to stand her trial. Subsequently, however, the Director presented an ex officio indictment in relation to that count which became Count 8 in the indictment.

11 The appellant stood her trial in the Supreme Court in relation to the nine counts before her Honour Justice Mathews and a jury. The trial commenced on 7 May 1991. On 11 September 1991 the jury returned verdicts of guilty to Counts 1,2,3,4,6,7 and 9, and an alternative guilty verdict in relation to Count 5. The jury returned a verdict of not guilty in relation to Count 8. On 18 October 1991 the appellant was sentenced to a total term of imprisonment of 12 years 3 months with a non-parole period of 10 years 3 months.

12 The appellant appealed her convictions and sentence to the Court of Criminal Appeal. That court subsequently dismissed her appeal (R v Catt (1993) 68 A Crim R 189).

13 In early 2001 the appellant petitioned the Governor, pursuant to s 474B Crimes Act 1900, seeking a review of her convictions on the eight (8) counts on which she had been found guilty. On 24 July 2001 the Attorney-General referred the matter to the Court of Criminal Appeal pursuant to s 474C(l)(b) of that Act.

14 On 7 December 2001 the appellant filed a Notice of Appeal in the Court of Criminal Appeal. In considering the appeal that Court on 12 July 2002 ordered that the factual issues in the appeal be remitted to a judge of a court of trial pursuant to s 12(2) of the Criminal Appeal Act 1912. The matter was allocated to Davidson ADCJ for the determination of those matters. His Honour delivered his findings on 27 July 2004.

15 On 17 August 2005 the Court of Criminal Appeal delivered judgment allowing the appeal in part: R v Catt [2005] NSWCCA 279. McClellan A-JA (with whom Adams J agreed) said:

[232] I have come to the conclusion that the appeal in relation to counts 3 and 4 should be dismissed and the appeals in relation to counts 1, 2, 5, 6, 7 and 9 upheld.

[233] With respect to count 9 (unlicensed pistol) the sentence has already been served and an order for a new trial would not be appropriate. A verdict of acquittal should be entered.

[234] However, with respect to the other matters the charges are serious and although I am satisfied the convictions should be quashed it is a matter for the Director of Public Prosecutions, and not this Court, to determine whether a new trial should take place. Although there is undoubtedly significant reasons (sic) why a new trial may be appropriate, not the least of which is to ensure that when significant charges are brought they are determined according to law, this must be balanced with the fact that fresh trials would occasion significant expense and it would be unlikely that any further term of imprisonment would be required to be served, even if convictions were entered on all charges. The appellant was released on bail on 6 August 2001, just over four months before her release on parole was due on 10 December 2001.

[235] In the circumstances, the appellant should remain on bail pending the decision by the Director of Public Prosecutions as to whether to proceed with any fresh trial.

16 The Court made the following orders:

1. Uphold the appeal in relation to Counts 1, 2, 5, 6, 7 and 9 and quash each conviction.

2. Enter a verdict of acquittal on Count 9.

3. Order that there be a new trial in relation to Counts 1, 2, 5, 6 and 7.

4. Dismiss the appeal in relation to Counts 3 and 4.

5. The appellant's bail is to continue.

6. Reserve liberty to apply.

17 On 22 September 2005 the Director directed that there be no further proceedings against the appellant on all the outstanding charges. On 26 September 2005 a form from the Office of the DPP headed "PARTICULARS OF NO FURTHER PROCEEDINGS SUBMISSION TO THE DIRECTOR" ("the Particulars") was prepared by a Ms Jenni Asplet an Administrative Officer Level 2 within the Secretariat Unit of the Office of the DPP. The evidence established that this document was forwarded to the Court of Criminal Appeal Registry as well as to a number of other government agencies such as Police Liaison and the Bureau of Crime Statistics.

18 The document referred to in the preceding paragraph was, relevantly, in the following form:

HAS A BILL BEEN FOUND: YES  NO

IF BILL FOUND, ATTACH COPY OF INDICTMENT. IF NOT, LIST CHARGES PENDING:

Malicious wounding, perjury, attempt to cause noxious thing to be taken, solicit to murder (x 2)

CORRECT DETAILS ARE ENTERED ON CASES AS TO CURRENT CHARGES: YES

...

RESULT (For Secretariat Use Only)

Date of Decision: 22.9.05

Decision:  NFP all outstanding charges against all accused in this matter ["ALLNFP"] - Close on CASES? YES/NO

Charges where No further Proceedings directed re this accused.

Malicious wounding, perjury, attempt to cause noxious thing to be taken; solicit to murder (x 2)

Charges remaining against this accused in this matter:

None

Secretariat: (signed) Date: 26/9/05

The document was signed by Ms Asplet.

19 On the same day Ms Asplet wrote to the appellant on the letterhead of the Office of the DPP in these terms:

RE: Regina v Yourself

Offences: Malicious wounding; Perjury; Attempt to cause noxious thing to be taken; Solicit to murder (x2)

District Court No: 02/12/1052

I wish to advise that after careful consideration of this case the Director of Public Prosecutions has made the decision to proceed no further with the above charges.

The Application of the respondent to adduce fresh evidence

20 By notice of motion filed on 16 September 2011, the respondent sought leave to rely in that appeal upon an affidavit of Belinda Castle sworn 15 September 2011 and upon the affidavit of Lynley Tretheway affirmed 16 September 2011 and, in particular, to a document exhibited to that affidavit. The appellant did not object to the reading of Ms Castle's affidavit and it was duly received. With respect to the document which was an exhibit to Ms Tretheway's affidavit no objection was taken to the second page of that document but objection was taken to the first page.

21 The document in question was a submission to the Director dated 21 September 2005 by Mr Keith Wright, a Professional Assistant in the Office of the DPP, the subject matter of which related to the Court of Criminal Appeal's order that the appellant be re-tried on Counts 1, 2, 5, 6 and 7. The recommendation to the Director contained on the second page of the document in respect of which objection was not taken stated as follows: "I recommend that the Director, in exercising his discretion, direct no further proceedings against Roseanne Catt on all outstanding charges." The Director Mr Nicholas Cowdroy QC, then endorsed in his own hand the recommendation in the following terms: "I agree and so direct" and signed and dated his direction 22 September 2005. It was this direction that was the subject of the document referred to at [17] and [18] above.

22 Notwithstanding the objection of the appellant to the first page of Mr Wright's submission to the DPP, it was admitted subject to relevance. It contains observations by Mr Wright as to the pros and cons of the appellant being put on trial in respect of the Count in respect of which the Court of Criminal appeal had ordered a new trial. In particular, it contains Mr Wright's agreement with the assessment of the Deputy Senior Crown Prosecutor as to the strength of the case against the appellant but expressed the opinion that that notwithstanding, a re-trial was not warranted in the circumstances.

23 Given the basis upon which, in my opinion, the appeal should be dismissed, I do not consider that the contents of the first page of Mr Wright's submission to the DPP has any relevance to the issues to be determined on the appeal. That is because this Court is bound by the decision of the High Court in Davis v Gell (1924) 35 CLR 275 to which further reference will be made below. If the correctness of that decision is ultimately challenged in the High Court, then the contents of page 1 of Mr Wright's submission may be relied upon by the respondent to support the correctness of the decision in Davis. However that comment should not be taken as in any way indicating a view as to the correctness of Davis or suggesting that the contents of page 1 of Mr Wright's document is relevant to a submission in support of the correctness of that decision. For the purpose of the present appeal, it is not relevant and I therefore ignore it.

The questions for separate determination

24 The questions for separate determination were as follows:

"A. With respect to each of the Counts 1, 2, 5, 6 and 7 for which the plaintiff was tried:

i. Accepting that the proceedings terminated in favour of the plaintiff, to the extent that the plaintiff's claim for malicious prosecution is based upon each of these counts, does the plaintiff need to prove her innocence in relation to each count to succeed?

B. With respect to count 9 for which the plaintiff was tried:

i. To the extent that plaintiff's the claim for malicious prosecution is based upon this count does the plaintiff need to prove her innocence of the charge?"

25 As the primary judge noted at [3] of his reasons, the principal relevance of determining these questions in advance of the remainder of the hearing was because the answers to them would determine what evidence it was necessary and admissible to lead on the hearing of the appellant's action. The primary judge answered the separate questions as follows:

A. Yes.

B. No.

The issues determined by the primary judge

26 At [17] of his reasons, the primary judge noted that the following issues were argued on the first question:

"(1) Whether the forwarding of the Particulars to the Court could be regarded as the entry of a nolle prosequi?

(2) If the forwarding of the Particulars amounted to a nolle prosequi, is the result that the [appellant] must prove her innocence in relation to each count in order to succeed?"

27 In relation to the second question, his Honour noted the following issue was argued:

"(3) In circumstances where the Court of Criminal Appeal acquitted the [appellant] in relation to count 9 for the reasons it gave, is it necessary for the [appellant] to prove her innocence to succeed in relation to this count?"

The relevant statutory provisions applicable to the Director

28 The relevant statutory provisions which governed the powers of the Director to direct that no further proceedings be taken against the appellant are to be found in s 7 of the Director of Public Prosecutions Act 1986 (the DPP Act) which is in the following terms:

"7 Principal functions

(1) The principal functions and responsibilities of the Director are:

(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court,

(b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and

(c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution.

(2) The Director has the same functions as the Attorney General in relation to:

(a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial,

(b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and

(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial."

The primary judge's decision

29 The primary judge found (at [38]) that the terms of the Director's notification to the registry of the Court of Criminal Appeal as per the Particulars constituted an exercise of the Director's power under s 7(2)(b) and, in particular, that it constituted the entry of a nolle prosequi. It was common ground that a nolle prosequi could only be entered if, at the time of entry, there was an extant indictment. The respondent submitted that the indictment containing the counts referred to at [9] and [10] above and which was presented at the appellant's trial in 1991 was not spent and remained extant as a consequence whereof the direction of the Director that no further proceedings be taken against the appellant constituted the entry of a nolle prosequi.

30 In this respect it is now well established and his Honour acknowledged at [38], that the power conferred by s 7(2)(b) includes a power to enter a nolle prosequi and that a direction under that provision constitutes such an entry: R v Howard [1992] 29 NSWLR 242 at 249 D-F; R v GKA (1998) 99 A Crim R 491 at 494 per Cole JA with whom Gleeson CJ and Barr J agreed; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [181] per Wood CJ at CL.

31 However, the appellant submitted to the primary judge and on the appeal that at the time the Court of Criminal Appeal quashed her convictions the indictment upon which she had been originally charged was spent. Accordingly, it was submitted that a new indictment would have to be presented on any new trial as there was no evidence of the Director founding a bill pursuant to s 7(2)(a) of the DPP Act. In fact the statement in the Particulars which was relied on crossed the "No" box in answer to the question: HAS A BILL BEEN FOUND.

32 The primary judge did not have the benefit of Mr Wright's recommendation of 21 September 2005 and the Director's endorsement of that recommendation on 22 September 2005. However, as the authorities to which I have referred make clear, although s 7(2)(b) includes the power to enter a nolle prosequi, its terms permit of a wider application the extent of which has yet to be determined: cf GKA at 494.

33 However, the statement in the Particulars relied upon by the appellant is not an answer to the question of whether, once the appellant's convictions with respect to the charges on the indictment were quashed and a new trial of those charges ordered, the indictment was then spent in the sense that it was not resurrected, as it were, by the order of the Court of Criminal Appeal so that the appellant could not be re-tried unless a new indictment was presented. Accordingly, as the primary judge noted at [25] of his reasons, the initial question to be decided was the status of the indictment upon which the appellant had been originally tried.

34 His Honour dealt with this issue at [26] to [33] of his reasons, concluding at [34] that when the Court of Criminal Appeal quashed the convictions on the relevant counts of the indictment and ordered a new trial, the indictment upon which the appellant had been tried remained extant and was not spent. Accordingly, a decision of the Director not to proceed further on the charges amounted to an entry of a nolle prosequi.

35 In coming to this conclusion his Honour primarily relied upon the decision of the Supreme Court of Tasmania in R v Nicholas (1989) 45 A Crim R 299. He dealt with that decision in the following paragraphs of his reasons:

[27] In R v Nicholas (1989) 45 A Crim R 299 the indictment upon which the accused was charged contained three counts. At the conclusion of the Crown case the trial judge upheld a submission that the Accused had no case to answer on count 2 and the Accused was acquitted on that count by direction. He successfully appealed against his conviction on the other 2 counts in the indictment. The Court of Criminal Appeal ordered that the convictions on counts 1 and 3 on the indictment be set aside and a new trial held on those counts. Prior to the commencement of the second trial the relevant Crown law officer entered a nolle prosequi on counts 1 and 3 on the indictment, and in due course a further indictment was filed containing eight counts, two of which were similar to counts 1 and 3 in the original indictment.

[28] At the commencement of the second trial the Accused moved to quash the indictment (relevantly for present purposes) on the basis that it was formally defective. That submission was made on the basis that the two counts which were similar to counts 1 and 3 in the original indictment had been the subject of the nolle prosequi by the Crown, and it was argued that he could no longer be tried on those counts. The trial judge dismissed the application, and the Accused appealed.

[29] The principal judgment in the Court of Criminal Appeal was given by Cox J with whom Nettlefold and Wright JJ agreed. Cox J set out the provisions of s 404 of the Criminal Code 1924 (Tasmania) which, in similar but not identical terms to s 8 Criminal Appeal Act 1912 (NSW) (R v Murrell (2001) 123 A Crim R 54 at [23]), gives power to order a new trial where there has been a miscarriage of justice. He then went on to say this (at 303):

Prima facie therefore where an appeal against conviction succeeds the court is required not only to quash the conviction but to direct a judgment and verdict of acquittal to be entered, thereby terminating all proceedings against the appellant on the indictment and arming him with a clear plea of autrefois acquit to any further proceedings in respect of the same subject-matter. Of course to the extent that any further indictment may allege new issues, not the subject of the first indictment and in respect of which issues the appellant has not hitherto been in jeopardy, that is a perfectly acceptable course (see, for example, Gerakiteys (1984) 153 CLR 317 ; 12 A Crim R 54) and not one in respect of which the above plea could be maintained. However, if the court sees fit to exercise certain other powers it has, including that of ordering a venire de novo or a new trial, its order will quash the original conviction and will refrain from directing a judgment and verdict of acquittal which would obviously be inconsistent with such an order. Consequential orders under s 404(2) will provide a mechanism for further proceedings upon the only process then before the court, that is the subsisting indictment. Because that is the only document identifying the issues before the court, it is by reference to that document that the court would indicate the issues in respect of which the judgment and verdict of the court should stand, be set aside or remitted to another panel of jurors for retrial. In the present case the verdict of not guilty on count 2 (forgery) was not challenged and had to stand. The court could have dismissed the appeal in respect of one of the remaining counts or upheld it in respect of both, quashing them and directing a verdict of acquittal on one and ordering a retrial on the other or, as was the case here, directing that both remaining counts should be retried. The order conveniently indicated, by reference to the existing indictment, the issues which rather than being concluded by virtue of verdict and judgment and giving rise accordingly to a plea of autrefois acquit should be re-submitted to a court of trial. It in no way in my view prevented the Crown from exercising its non-examinable prerogative power (Radford [1951] Tas SR 1; Barton (1980) 147 CLR 75) to enter a nolle prosequi on that indictment and to present the accused on a further indictment drafting the issues in a different form and including, where appropriate, any new issues. (emphasis added)

[30] His Honour then went on to consider the common law position prior to a statutory appeal being available to challenge a conviction by moving using a writ of error. He cited Blackstone where this appears:

When judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused. ... But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby.

(Blackstone's Commentaries (1st ed, 1769), Vol IV, p 386), also Chitty and Russell.

[31] His Honour then said (at 305):

This brief survey of the powers and practice of courts of criminal appeal indicates to me that though ordinarily the court will either affirm or substitute the verdict on the record, thereby concluding all issues raised on the indictment upon which the accused took his trial, where the court orders a further trial by virtue of a power to order either a new trial or a venire de novo the verdict on the record of the court of trial will be set aside and the issues raised by the indictment will remain justiciable. It is a mere matter of mechanics whether the new trial proceeds on the same indictment or upon some fresh indictment substituted by an authorised officer of the Crown. In this regard the situation is essentially the same as that contemplated by the Jury Act 1899 (Tas), s 49, where the first trial results in a disagreement or is otherwise aborted. It remains a proper matter for the discretion of a Crown law officer whether to proceed to a further trial at all, notwithstanding the apparently mandatory order for a new trial, and equally a matter of discretion whether or not to proceed with the count charged or some other one upon which the appellant could have been convicted on the first indictment. One can easily imagine cases where, despite an order for a new trial on an indictment alleging murder, the Crown may think it proper to proceed only with an allegation of manslaughter. (emphasis added)"

36 At [26] his Honour referred to Janceski at [181] and [221] observing that it was there held that where a jury could not agree and the trial judge ordered a new trial, the indictment was not spent. Although the primary judge did not deal with Janceski in any detail it is convenient for me to do so at this point.

37 The relevant factual steps in Janceski were summarised by Spigelman CJ at [17] as follows:

"(i) The appellant was committed for trial by way of a paper committal on 20 November 2002 on the charge contained in subsequent indictments;

(ii) On or about 16 December 2002, a Crown Prosecutor found a bill for the charge;

(iii) On 16 December, an indictment was signed by a Crown Prosecutor;

(iv) The matter came on for trial in the District Court on 25 August 2003. The appellant was arraigned before his Honour Judge Nicholson SC on a joint indictment charging him and the three other accused with the charge;

(v) Mr Fox, Crown Prosecutor, who appeared for the Crown, presented a further indictment, in the same terms as (iii), signed by himself and dated 25 August 2003 (the Fox indictment);

(vi) The jury was unable to reach a verdict in the trial before his Honour Nicholson DCJ and a new trial was ordered on the same charge;

(vii) On 23 February 2004, the second trial commenced before her Honour Judge Tupman. Ms Traill, a barrister at the private bar, was briefed to prosecute for the Crown. She presented an "indictment" signed by herself (the Traill indictment), in the same terms as the Fox indictment."

38 For present purposes, the relevant question was whether the Fox indictment was still extant notwithstanding that the jury was unable to reach a verdict at the trial of the charges in that indictment so that if the Traill indictment was invalid, the second trial could have proceeded on the basis of the Fox indictment. At [84] of his reasons the Chief Justice indirectly answered that question in the affirmative. At [181] Wood CJ at CL answered it directly when he said:

"[181] The simple fact is that it was the Traill indictment to which the appellant pleaded, and upon which the trial proceeded. There was no attempt to revive or to rely on the original Fox indictment, which the parties clearly regarded as having been superseded. The position would have been otherwise had the Fox indictment been re-presented and had the trial proceeded upon it, as could have happened since it had not been spent by verdict, by plea of guilty, or by entry of a nolle prosequi (now by a direction under s 7(2)(b) of the Director of Public Prosecutions Act 1986: R v Howard (1992) 29 NSWLR 242 at 247)."

39 Howie J, with whom Hunt AJA and Johnson J agreed, was of a similar view. His Honour said:

"[221] I am of the view that in the present case the Fox indictment could have sustained the trial of the appellant before Tupman DCJ, if the Traill indictment had not been presented. There is no doubt that the proceedings before Tupman DCJ were a continuation of the proceedings commenced by the presentation of the Fox indictment: R v Taylor [2003] NSWCCA 194. That indictment had not been spent because the trial upon it concluded without verdict. Proceedings for an offence charged on an indictment can only be brought to a conclusion in one of three ways: by verdict after trial, by plea of guilty or by entry of a nolle prosequi: R v Howard (1992) 29 NSWLR 242 at 247. As none of these events occurred, the proceedings commenced by that indictment were still on foot when the appellant came before Tupman DCJ. Had the presentation of the Traill indictment caused some unfairness to the accused, the court could have stayed it and thereby required the Crown to proceed on the earlier indictment: R v Harris (No 2) [1990] VR 305."

40 Having concluded that the Director had entered a nolle prosequi and that it had been notified to the Court of Criminal Appeal registry by the Particulars, the primary judge then considered the effect of that action on the requirement in an action for malicious prosecution that the relevant criminal proceedings be terminated in favour of the plaintiff. The issue which therefore arose was whether, in the case of the entry of a nolle prosequi, the proceeding can only be said to have terminated in favour of the plaintiff if the latter establishes his or her innocence. The resolution of this issue depended initially on the decision of the High Court in Davis discussed by the primary judge at [43] to [47] of his reasons. What follows is taken from those paragraphs with some additional citations and comments of my own where appropriate.

41 The Court in Davis was constituted by Isaacs ACJ, Gavan Duffy J and Starke J. Isaacs ACJ first discussed the elements of the tort of malicious prosecution. In respect of the element that the criminal proceedings must have terminated favourably to the plaintiff, his Honour said (at 286):

"In Steward v Gromett, which is a landmark in the development of the action, the principle was clearly established - obviously on the broadest ground of inherent justice - that, where a judicial determination of innocence was impossible by reason of the form of proceeding, the plaintiff was not bound to produce such a termination. It follows necessarily from the principles adverted to that a nolle prosequi entered by the prosecuting authority on its own responsibility and discretion creates a position in which an accused person, afterwards plaintiff in an action for malicious prosecution, may properly say the proceeding was not capable of a complete termination in his favour by way of acquittal. But though so far absolved, it does not follow that the termination by way of nolle prosequi in any way establishes innocence. "The effect of a nolle prosequi when obtained" (Chitty's Criminal Law, vol. i., p 480) "is to put the defendant 'without day', but it does not at all operate as an acquittal." (And see R v Mitchell) Its evidentiary effect depends on other considerations, to which I shall later advert."

42 His Honour returned to the issue at 292 where he said:

"Acquittal connotes (a) termination of the proceedings and (b) innocence of the accused. Nolle prosequi connotes the first only. This effect it must have on the civil action. But innocence in that case still remains to be proved in order to maintain the action and cannot be assumed. This is strongly exemplified in Bank of New South Wales v Piper."

43 It would appear that the proposition that where a nolle prosequi is entered the plaintiff in an action for malicious prosecution must prove his or her innocence has its genesis in a passage in the judgment of Bowen LJ in Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455 where his Lordship said:

"In an action for malicious prosecution the plaintiff has to prove, first, that he is innocent and that his innocence was pronounced by the tribunal before which the accusation was made."

44 At 293 of Davis Isaacs ACJ, in effect, rejected the contention that that passage meant that the plaintiff in every such action must prove as separate independent facts (a) his innocence to the satisfaction of the civil tribunal, and in addition thereto, (b) that he was pronounced innocent by the criminal tribunal. Such law was inconsistent with the proposition that where the plaintiff has been acquitted that acquittal denotes innocence so that no further issue of innocence arises. To that extent Bowen LJ's statement should, in effect, be confined to the situation where the proceedings have terminated by the entry of a nolle prosequi.

45 Gavan Duffy J agreed with the other members of the court observing (at 294) that:

"... in an action for malicious prosecution the plaintiff must prove his innocence, and that proof that a nolle prosequi was entered on his trial does not entitle the jury to assume that the plaintiff was innocent."

His Honour did not find it necessary to discuss what the position would have been if the plaintiff instead of proving the entry of a nolle prosequi had been able to prove that he had been acquitted.

46 On the other hand Starke J (at 296) stated that an

"acquittal no doubt establishes the fact that the proceedings have terminated in favour of the plaintiff, but it also establishes, in my opinion, his 'innocence' for the purposes of an action for malicious prosecution."

47 At 297 Starke J stated that proof of innocence by an acquittal applied only where the acquittal was such as to entitle the plaintiff to plead autrefois acquit in case he be afterwards prosecuted for the same crime. However, citing "Selwyn's Nisi Prius" 13 ed Vol II p 1005, it was not necessary in an action for malicious prosecution that the plaintiff in every case should allege or prove such an acquittal for it may be brought under circumstances which precluded the possibility of such an acquittal. His Honour continued:

"He [the plaintiff] may show, for instance, that the proceedings terminated in his favour by a nolle prosequi, or by the ignoramus of a grand jury, or by the refusal of a Justice to commit for trial, or by some want of jurisdiction in the court, or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case."

As the primary judge noted at [47] of his reasons "Ignoramus" of a grand jury is the present equivalent of the refusal of the Attorney-General or the Director to find a bill of indictment.

48 The primary judge then dealt with the consideration of Davis by the High Court in Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527. In that case the plaintiff in an action for malicious prosecution had been committed for trial on a charge of conspiracy with three other persons to cheat and defraud shareholders and policy holders of the Commonwealth Life Assurance (Amalgamated) Association. He was committed for trial by the Magistrate but the Attorney-General decided that no indictment should be filed.

49 The relevant passages in the joint judgment of Rich, Dixon, Evatt and McTiernan JJ are set out at [48] to [51] of the primary judge's reasons. Again what follows is taken from those paragraphs with additional citations where considered appropriate. Thus the joint judgment set out (at 532) the issue for determination by the High Court in the following terms:

"At the trial of the action under consideration in this appeal the plaintiff insisted that he was entitled to lead evidence to establish affirmatively that he was innocent of the conspiracy with which he had been charged and for that purpose to prove many matters, such as what he had been informed or believed and what circumstances or alleged circumstances actuated his conduct, all of which would have been inadmissible if the issue of his guilt or innocence were out of the case. The defendant objected, and maintained that the question of the actual guilt or innocence of the plaintiff formed no part of the issues before the jury. The trial judge, on the authority of the judgments given in this court in Davis v Gell, admitted the evidence. There can, we think, be no doubt that, if this course was erroneous, then, having regard to the nature of the evidence so admitted, the defendant is entitled to a new trial. The contention that no substantial wrong or miscarriage would be occasioned by the error appears to us to be quite untenable.

The first question for consideration, therefore, is whether the plaintiff's guilt or innocence of the charge was in issue. The affirmative of this question is supported on the part of the plaintiff on the ground that his innocence is an element essential to his cause of action and also a matter going to damages. These are, of course, separate reasons for throwing open before the jury in the civil proceeding the question with which the criminal proceeding was concerned. We shall deal first with the question whether the plaintiff's guilt or innocence is an issue going to the cause of action."

50 After referring (at 533) to the statement of Bowen LJ in Abrath to which I have referred at [43] above, their Honours then turned to what had been said in Davis observing (at 533-534) that:

"[a]fter an elaborate examination of the decided cases by Isaacs J. and by Starke J., those learned judges arrived at conclusions which appear to us to be substantially the same and in which, as we understand his judgment, Gavan Duffy J. concurred. Their Honours considered that in every action of malicious prosecution the plaintiff must show that the charge was "unfounded," and that meant that he must show his innocence. But if he had been tried and acquitted, this would establish his innocence for the purpose of an action for malicious prosecution. It would also show that the criminal proceedings had terminated and thus satisfy another requirement indispensable to the maintenance of the civil action. That requirement might be satisfied by other forms of termination short of acquittal, but they would not establish innocence, at all events conclusively, Starke J. stated the position as follows: 'He may show, for instance, that the proceedings terminated in his favour by a nolle prosequi , or by the ignoramus of a grand jury, or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the court, or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case. It is unnecessary, and indeed undesirable, in this case, to discuss what (if any) presumptions in favour of innocence, or other evidence would satisfy the burden'."

51 Their Honours then continued (at 534-535):

"In expressing the view that the dismissal by a magistrate of an information for an indictable offence or the ignoring of a bill of indictment by a grand jury was insufficient to exclude or conclude the question of the plaintiff's guilt or innocence of the charge, the court went beyond the particular case which, as we have already said, was one where after the plaintiff had been put on his trial a nolle prosequi was entered on behalf of the Crown. Now the question whether a nolle prosequi is a sufficient termination of the criminal proceedings to enable the accused to maintain an action of malicious prosecution, assuming that he can establish the other elements in the cause of action, is one which has never been settled by English authority. A nolle prosequi does no more than bring the trial to an end. The accused may again be indicted or fresh process may be awarded in the same indictment and the prisoner again put on his trial.

...

The development by an action on the case in the nature of conspiracy of the remedy for malicious prosecution was perhaps somewhat late and relatively slow. The elements of the cause of action did not become definite and certain before the nineteenth century and it is evident that there has survived to the present time a difficulty in the application of principles, otherwise settled, to the special case of proceedings brought to an end by nolle prosequi . The view adopted in Davis v Gell covered that difficulty and solved it by leaving the question of innocence or guilt open for inquiry in the civil proceedings. But the opinion expressed by the members of the court that proceedings which ended in favour of the accused by a refusal of the magistrates to commit fell under the same rule was unnecessary to the decision, and, in view of the unreported case in the Privy Council, Balbhaddar Singh v Badri Sah (No 66 of 1924), it cannot now be followed."

52 At 541-543 their Honours further observed:

"As Isaacs J. explains in Davis v Gell, Bowen LJ [in Abrath] did not mean that innocence must be proved and acquittal also. He meant that a decision in favour of the accused must be proved, which decision thus established innocence. When he said that the plaintiff must prove first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made, he used words which cover discharge by a magistrate, the ignoring of a bill of indictment and a judgment of acquittal after a verdict of not guilty. He appears to us to have meant no more than is meant by the statement of Byles J. in Basebe v Matthews which we have quoted.

...

Unless the termination of the criminal proceedings has been by nolle prosequi , a case which is covered by the decision of Davis v Gell, the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff. The plaintiff must prove that the prosecution terminated in his favour. He must prove that there was no reasonable and probable cause for the prosecution. But he need not prove that in truth he was innocent of the charge, and it is not open to the defendant to attempt to prove as an answer to the action that in truth he was guilty, notwithstanding the termination of the criminal proceedings in his favour.

...

Except in the case of a nolle prosequi covered by the decision in Davis v Gell, we are of opinion that the guilt or innocence of the plaintiff is not an issue going to the cause of action in malicious prosecution.

The present case is not one where the proceedings were terminated by the entry of a nolle prosequi. They ended by the refusal of the Attorney-General to file an indictment. Under the law of New South Wales there is no grand jury, and the Attorney-General discharges a duty analogous to or replacing that which, under the common law, was performed by a grand jury. See sec 5 of 9 Geo. IV. c. 83; Crimes Act 1900, sec 572, and Justices Act 1902-1931 NSW, secs 39, 41 (6) and 42, and R v McKay, to which Rich J. has referred us. When an accused person is committed for trial, it is for the Attorney-General to consider whether the accused should be put on his trial and for what precise offence, and this he does by filing or refusing to file an indictment. This is an entirely different function from that of entering a nolle prosequi upon an indictment after it has been filed, which does no more than non. pros. the indictment. The decision in Davis v Gell was upon the effect of a termination by the latter process and both on principle and upon the authority of the decision of the Privy Council in Balbhaddar Singh v Badri Sah it cannot be extended further." [emphasis added]

53 At [53] of his reasons, the primary judge noted the submission on behalf of the appellant that the jurisprudence contained in Davis had now been superseded, that it did not represent the present state of the law, and that his Honour should not follow it. In support of that submission the appellant relied on the recent decision of the High Court in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500. At [55] the primary judge concluded that he did not think that anything said in A cast any light on the present issue. Relevantly, neither Davis nor Smith was referred to in A and the issue in that case did not concern the question of whether criminal proceedings had been terminated in the plaintiff's favour. This is so notwithstanding the reference in the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ at [57] that because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider was where the plaintiff had been acquitted for the offence charged. Such an acquittal was not to be controverted. Like the primary judge I cannot discern any basis upon which it could be said that anything said in A reflected on the correctness or otherwise of Davis.

54 The appellant nevertheless submitted that the decision of the Full Court of the Supreme Court in Mann v Jacombe [1961] NSWR 273; (1961) 78 WN(NSW) 635 was inconsistent with Davis and should be followed in preference to that decision. The primary judge correctly rejected that submission. The case involved a pleading issue under the old forms of pleading in New South Wales. The plaintiff, Mann, sued the defendant, Jacombe, for malicious prosecution arising out of criminal proceedings issued by Jacombe against him. There were four counts in the plaintiff's declaration to which Jacombe demurred upon the ground that the declaration did not allege termination of the proceedings referred to in each count in the plaintiff's favour. The basis of this submission was that the entry of a nolle prosequi was not a termination of proceedings in favour of the plaintiff Mann in the criminal case.

55 In their joint judgment Evatt CJ, Herron and Sugerman JJ said, with appropriate succinctness:

"All that need be said on the point is to refer to the decision in 1891 of the Full Court of New South Wales in Gilchrist v Gardner (1891) 12 LR (NSW) 184, from which it appears that the balance of the decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution. See also Commonwealth Life Assurance Society Ltd v Smith (1938) 59 GLR 527; and cf. Davis v Gell (1924) 35 CLR 275. In the result, the objection to the declaration by the defendant fails in respect of each count."

There was therefore judgment for the plaintiff on the demurrer.

56 The primary judge dealt with the effect of the decision in Mann at [61] of his reasons in the following terms:

"[61] It does not seem to me that Mann v Jacombe is inconsistent with Davis. Mann v Jacombe says nothing about the need of a plaintiff to prove his or her innocence. It dealt simply with the question of whether the entry of a nolle prosequi was a termination of proceedings in favour of the plaintiff. Indeed, in the passage from the judgment of Starke J (which I have set out at para 47 above) he expressly says that the Plaintiff may show that the proceedings terminated in his favour by a nolle prosequi but then goes on to say that proof of that did not establish the innocence of the Plaintiff. That view was reaffirmed in Smith in the passage that I have set out in para 51 above. In any event, the question I am determining has as its introduction the words 'accepting that the proceedings terminated in favour of the Plaintiff'."

57 His Honour then referred to two other decisions relating to the effect of the filing of a nolle prosequi with respect to an action for malicious prosecution. The first was the decision of Nettle J in Skrijel v Mengler [2003] VSC 270. At [63] the primary judge set out [224] to [230] of Nettle J's judgment. The latter accepted that in Davis a majority of the High Court had held that a nolle prosequi was not enough to establish that the proceeding had terminated favourably to the plaintiff. Nettle J also referred to Smith noting that first, that was a case where the Attorney-General had refused to file an indictment and was not a nolle prosequi case and, secondly, that the High Court expressly stated that Davis still covered a case where the termination of the criminal proceedings had been by nolle prosequi. That being so his Honour considered that until the High Court says otherwise, the law in relation to nolle prosequi remained as in Davis.

58 However I note that the primary judge (at [65]) agreed with Nettle J's comment that Mann v Jacombe was not consistent with Davis. However at [229] of his reasons in Skrijel Nettle J, after quoting the passage from the judgment of Starke J in Davis which I have reproduced at [46] above, observed that he saw no necessary inconsistency as between Starke J's observations and what had been held in Mann v Jacombe. I agree with Nettle J's observation that there is no inconsistency between the two decisions as in Mann v Jacombe no issue arose as to whether it was necessary for the plaintiff (Mann) to plead that he was innocent of the criminal charges in question. With respect his Honour seems to have misinterpreted Nettle J's comment.

59 The primary judge then quoted extensively from the judgment of Heenan J in Noye v Robbins and Crimmins [2007] WASC 98 and, in particular, [238] to [246] of his Honour's reasons. It is unnecessary to repeat what Heenan J said for it does not differ in substance from what Nettle J had said in Skrijel. However, at [241] his Honour did suggest that there was an element of inconsistency between Davis and Smith observing that that inconsistency became apparent

"when one considers the previously long accepted view that the importance of the termination in the plaintiff's favour is not that he or she is innocent but that he or she has not been convicted."

Heenan J identified further problems with the decision in Davis v Gell at [242] and [243]. However, at [246] his Honour recognised the binding authority of the High Court in Davis which required him to decide that proof of the filing of a nolle prosequi was insufficient, by itself, to establish the termination of the criminal proceedings in the plaintiff's favour.

60 Finally, at [68] of his reasons, the primary judge referred to an article by G P Donovan entitled "The Effect of a nolle prosequi in Relation to the Action for Malicious Prosecution": (1939) 12 ALJ 457. The learned author analysed in some detail both Davis and Smith as well as the decision of the Full Court of the Supreme Court of New South Wales in Gilchrist v Gardener (1891) 8 WN(NSW) 21, a decision not referred to by the primary judge, but relied upon on the appeal by the appellant and to which I shall refer to below. The learned author concluded that a nolle prosequi was a sufficient termination of proceedings within the meaning of that requirement first, because it puts an end to the particular prosecution and, secondly, because in any event it is a mode of termination, beyond the power of the plaintiff, of which the proceedings are capable. It would be fair to say that the learned author set out a number of reasons why he considered the decision in Davis to be incorrect. Nevertheless, he recognised that the decision had been preserved in Smith and remained the law until the High Court says otherwise.

61 Accordingly at [68] and [69] of his reasons the primary judge concluded in the following terms:

"[68] ... I consider myself bound to apply the law as enunciated in Davis v Gell as approved and modified in Smith. That law is that although the entry of a nolle prosequi will not mean that the proceedings have not terminated favourably to the Plaintiff, it leaves the issue of innocence of the Plaintiff undecided in a way that other forms of termination of the criminal proceedings, including the refusal or determination of the Attorney-General or DPP not to find a bill of indictment, do not.

[69] The result is, in my opinion, that a nolle prosequi has been entered in relation to the criminal proceedings against the Plaintiff, but that means that the Plaintiff must prove her innocence of the charges in the present proceedings in relation to counts 1, 2, 5, 6 and 7."

The appellant's submissions with respect to Davis v Gell and their resolution.

62 The appellant accepted that if the indictment upon which she was originally tried was still extant as at 22 September 2005 and the Director had in fact entered a nolle prosequi, then it followed that this Court was bound by the High Court's decision in Davis so that the primary judge was correct in giving an affirmative answer to the first question for his determination. However, in her written submissions the appellant submitted that the decision in Davis was wrong and/or that it was an anomaly that ought not be followed. Whether or not it be an anomaly is not for this Court to say. Furthermore, it is not for this Court to pursue the contention that the decision is wrong. Those are matters for the High Court to determine. Various criticisms of the decision have been made which, no doubt, would be taken into account in the event that its correctness is directly challenged in the High Court. The fact remains that this Court is bound by that decision and the primary judge was correct to apply it.

63 For the sake of completeness I would note the views of the text writers on the continued applicability of Davis where criminal proceedings have been terminated by the entry of a nolle prosequi. In Sappideen and Vines, Fleming's Law of Torts, 10th ed (2011) Thomson Reuters, the learned editors state at [27.40] on p 699 that the entry of a nolle prosequi after an indictment has been filed may now, "despite some earlier doubts", be regarded as in every way sufficient to satisfy the requirement in a malicious prosecution case that the criminal proceedings have been terminated in the plaintiff's favour. Accordingly, it is not incumbent upon the plaintiff to establish his or her innocence. In a footnote it is asserted that the majority decision in Davis that a nolle prosequi required the plaintiff to prove innocence "may be safely discounted" in the light of Smith.

64 In the volume of Vout, The Laws of Australia on Torts, 2nd ed (2007) Thomson Lawbook Co at [33.8.1690] on p 571, the learned editor is somewhat more sanguine observing, on the basis of Davis, that whether the entry of a nolle prosequi amounts to a favourable termination "is debatable". In Blay et al, Torts Law in Principle", 4th ed (2005) Lawbook Co, the learned authors are more robust asserting (at 544) that Davis is "flatly contradictory" to the later case of Smith and to the earlier cases of Gilchrist and Mann.

65 Finally, so far as the text writers are concerned, in Balkin and Davis, Law of Torts, 4th ed (2009) LexisNexis Butterworths at [25.5] it is asserted that the entry of a nolle prosequi by the Attorney-General in criminal proceedings sufficiently ends a prosecution so as to support an action for malicious prosecution. The authorities cited for this proposition are Gilchrist and Davis. If the learned authors intend to convey that Davis (as confined by Smith) is authority for the proposition that a nolle prosequi is sufficient to terminate the criminal proceedings favourably to the plaintiff without more, they are, with respect, mistaken.

66 The New Zealand Court of Appeal in Van Heeren v Cooper [1999] 1 NZLR 731 at 741 adopted Fleming to the effect that in the light of Smith, the majority decision in Davis that a nolle prosequi required a plaintiff to prove his innocence "may be safely discounted". However, in Earnshaw v Loy (No 1) [1959] VR 248 at 249-250 Sholl J acknowledged Davis as providing an exception in the case of a nolle prosequi to the proposition that the favourable determination of criminal proceedings by whatever means cannot be controverted in a subsequent malicious prosecution action, "at any rate as a separate issue" in that the plaintiff does not have to prove his innocence.

67 With respect to the New Zealand Court of Appeal and to those text writers who apparently regard Smith as overriding Davis even where the criminal proceedings have been terminated by the entry of a nolle prosequi, there can be no doubt to my mind, acknowledged by the primary judge and in the decisions of Nettle J in Skrijel and Heenan J in Noye to which his Honour referred in detail, that Davis was expressly excepted from Smith insofar as the relevant proceedings were terminated by the entry of a nolle prosequi. Those parts of the passage from the joint judgment in Smith which I have emphasised at [52] above make that abundantly clear. Furthermore, Davis, with respect to this issue, was a unanimous (not a majority) decision of the High Court which bound his Honour as it binds this Court as an intermediate court of appeal.

68 In order to avoid the application of Davis, the appellant essentially raised two issues. The first was that the Director's decision of 22 September 2005 was not one entering a nolle prosequi but was one whereby he declined to found a bill. The latter contention was sourced in the Particulars and the fact that the "No" box had been crossed in response to the question, "HAS A BILL BEEN FOUND".

69 In my view this submission cannot be sustained. First, it is inconsistent with that part of the Particulars under the heading "RESULT" which I have set out at [18] above and which makes it clear that the decision of the Director on 22 September 2005 was that no further proceedings would be taken against the appellant. This was an exercise by the Director of his power pursuant to s 7(2)(b) of the DPP Act. In any event, the Particulars was a document prepared by an administrative assistant in the Office of the DPP and cannot supplant the Director's decision as recorded at the end of the submission to him by Mr Wright referred to at [21] above.

70 The appellant nevertheless submitted that the present case was one of a no bill and, therefore, was on all fours with Smith. For the reasons I have indicated, such a submission cannot be sustained in the light of the evidentiary material to which I have referred.

71 The second and more significant issue was whether at the time the Director made his decision the indictment was spent or was extant. Paragraph 31 of the appellant's written submissions encapsulates her contention on this issue in the following terms:

"31. In any event:

(a) the original indictment on which the Applicant had been charged had ceased to have effect upon the decision of the Court of Criminal Appeal quashing the convictions;

(b) there was no new indictment raised;

(c) in order for there to be an entry of a nolle prosequi, there must be an extant indictment;

(d) therefore, the decision of the DPP could not have been the entry of a nolle prosequi."

72 There can be no doubt that in the present case the Director did not find a bill pursuant to s 7(2)(a) of the DPP Act. The direction he made on 22 September 2005 was made pursuant to s 7(2)(b). However, the appellant took exception to the observation of the primary judge at [41] of his reasons that as a consequence of GKA, a decision by the Director not to find a bill of indictment pursuant to s 7(2)(a) would now be regarded as the equivalent of entering a nolle prosequi. The relevant passage from the judgment of Cole JA in that decision is as follows:

"The power to direct a nolle prosequi is the same as one power referred to in ss 7(2)(a) and 27(a) of the DPP Act. A determination of a "no bill of indictment" would not prevent the bringing of a further indictment. The substance of the power contemplated by ss 7(2)(b) and 27(b) is wider than a nolle prosequi because it constitutes a direction that no further proceedings be taken against a person who has been committed for trial or sentence. Nonetheless, the power conferred by s 7(2)(b) includes a power to require entry of a nolle prosequi. It is not necessary in this proceeding to further define the scope of the power conferred by s 7(2)(b).´

73 In Howard at 249 the Court of Criminal Appeal said:

"When the language of s 7(2)(b) is considered in the context of the whole section, and is compared with that of s 7(2)(a), it can be seen that it is sufficiently wide to cover the function of entering a nolle prosequi upon an indictment that has already been prescribed. It is not limited to that function, but that is included. It would also include giving such a direction for the purpose of clearing the way for proceedings on a different charge. Accordingly, we accept the submission that the Director had power, in the present case, to direct that no further proceedings be taken against Morgan upon the indictment presented on 2 October 1990, and that such a direction would have the same effect as the entering by the Attorney-General of a nolle prosequi. The question is whether such a direction was given."

74 Although the final sentence from the passage from Howard seems to contrast the language of s 7(2)(a) with s 7(2)(b) and suggest that they are mutually exclusive, the first sentence from the passage of Cole JA's judgment in GKA suggests that a nolle prosequi could be entered pursuant to s 7(2)(a) where there is a determination not to find a bill. However, I do not think that that is what Cole JA intended to infer. In my view s 7(2)(a) is confined to those cases, relevantly, where the Director declines to find a bill, there being no extant indictment at that time. That decision cannot as a matter of principle be equated with the entry of a nolle prosequi. On the other hand, the latter may be entered pursuant to an exercise by the Director of his power under s 7(2)(b) to direct that no further proceedings be taken. Such a direction will constitute the entry of a nolle prosequi where, at the time the direction is made, there is an extant indictment.

75 The appellant nevertheless submitted that the effect of s 7 was to obliterate any distinction between the finding of a no bill and the entry of a nolle prosequi. It is not clear whether this submission was based on the remarks of Cole JA to which I have referred. If it was, I respectfully disagree with it. In my view the distinction remains although, subject to the effect of Davis, it may have no practical significance.

76 The principles regulating the law and practise concerning the entry of a nolle prosequi were extensively summarised by Debelle J in Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450 at 456-459. Relevantly for present purposes, in New South Wales it is established that no particular formality is required provided that the decision is clearly and distinctly communicated to the court. It was not suggested that that had not occurred in the present case. I have no doubt, therefore, that what the Director did in the present case when he made his direction in terms of s 7(2)(b) of the DPP Act was to enter a nolle prosequi to the outstanding charges against the appellant.

77 Accordingly, the resolution of the appeal turns on whether the indictment was extant at the time of the Director's decision. In this context the appellant relied upon the decision of the Full Court in Gilchrist v Gardner. In that case the plaintiff was charged with uttering a forged receipt. The matter went to trial but the jury failed to agree on a verdict. Thereafter the Attorney-General declined to further proceed against the plaintiff on that charge. The plaintiff instituted an action for malicious prosecution. His declaration recited the fact that he was tried upon the charge, a jury was duly empanelled but that the jury failed to agree on a verdict and the Attorney-General declined to proceed further. The defendant demurred to the declaration upon the ground that, first, on its face it appeared that the proceedings declared upon had not terminated in the plaintiff's favour and, secondly, that the fact of the jury having disagreed and the Attorney-General declining to proceed further was not such a termination of the prosecution as would entitle the plaintiff to maintain the action. The Full Court overruled the demurrer holding that the plaintiff was entitled to judgment. The Chief Justice stated the question for determination as follows:

"The question is, if the words in the declaration amount to a statement of the entry by the Attorney-General of a nolle prosequi, and if so whether the entry of a nolle prosequi in a criminal matter is such a termination of the proceedings in the plaintiff's favour as will entitle him to maintain an action for malicious prosecution."

78 The Chief Justice considered that the fact that the Attorney-General had declined to proceed further in the case was evidence that he had ordered a nolle prosequi to be entered. Accordingly, he was of the opinion that the words of the declaration amounted to a statement to that effect.

79 His Honour then turned to the question as to the effect of such an entry and, in particular, whether it was a determination of the proceedings in the plaintiff's favour. He considered that it was. He referred to the judgment of Crompton J in R v Allen (1862) 31 L.J.M.C 129 where his Lordship said:

"As long as the nolle prosequi remains on the record there is an end of prosecution. ... Goddard v Smith merely decides that the entry of a nolle prosequi does not amount even to a non-suit, though I rather think it puts an end to the prosecution ..."

80 The Chief Justice continued:

"It seems to me, therefore, that a nolle prosequi entered by the Attorney-General in a criminal case has the same effect as entry of a nolle prosequi by the plaintiff in a civil case. It puts an end to that particular matter. ... So the entry of a nolle prosequi by the Attorney-General puts an end to that prosecution, though he may afterwards bring a fresh prosecution to be begun."

There is nothing in the Chief Justice's judgment in Gilchrist which, in my opinion, supports the proposition contended for by the appellant.

81 The appellant also relied on the judgment of Windeyer J in Gilchrist where his Honour said:

"It is clear that the Attorney-General may, at any period of the case before it is finally determined by the verdict of the jury, enter a nolle prosequi, and the effect of that is, it seems to me, to put an end altogether to the prosecution. The prosecution may be commenced anew, and a fresh indictment may be filed, but it does not follow from that that the entry of a nolle prosequi to the first indictment should deprive the person who feels himself aggrieved prove thereby of his action for malicious prosecution." [emphasis added]

82 The appellant fastened on to that part of the judgment of Windeyer J that I have emphasised to support the proposition that after the entry of a nolle prosequi, the accused person could only be re-tried if a fresh indictment is filed. It therefore followed, so it was contended, that the indictment upon which the appellant was tried was spent.

83 In my opinion the observations of Windeyer J do not support the appellant's contention and are, in any event, inconsistent with the authorities to which the primary judge referred at [26] - [33] of his reasons. There is, of course, no doubt that after the entry of a nolle prosequi a new prosecution may be launched. And it is also apparent that a fresh indictment may be filed. It is noteworthy that Windeyer J did not say that a fresh indictment must be filed. The prosecution could proceed on the old indictment or a fresh indictment. But in any event it was common ground that a nolle prosequi can only be entered if there is an extant indictment. Once that proposition is accepted, as it must, it follows that the direction of the Director that no further proceedings be taken not only constituted the entry of a nolle prosequi, but also could only have been made upon the basis that the indictment was extant.

84 In any event, as a matter of fact, the original indictment in the present case was extant at the time when the Director's decision that no further proceedings be taken was made. The effect of the Court of Criminal Appeal's order that the conviction of the appellant on Counts 1, 2, 5, 6 and 7 be quashed was that the jury's conviction on those counts became void ab initio. In other words, the quashing of the convictions had the effect that there had never been a conviction on those counts. If this be so, as I believe it is, it follows that even though the indictment may have been spent when the jury convicted the appellant on the counts in question, it was, as it were, "resurrected" when those convictions were quashed and, therefore, remained extant thereafter.

85 The passage in the judgment of Crompton J in Allen cited by the Chief Justice in Gilchrist is in somewhat different terms from that which is the subject of the report of that case in (1862) 1 B & S 850; (1862) 121 ER 929. Allen is recorded in five different sets of law reports. From the version handed up to the Court in the course of argument by the appellant, his Lordship is reported as having said the following:

"Then, the nolle prosequi being on the record, there is an end of this prosecution; but the question remains whether that is final or not. I rather think, however, that Mr Archbold, in his Practice of the Crown Office, is right when he says, p62, that it 'has the effect of putting an end to the prosecution altogether' ... Goddard v Smith (6 Mod 261, 262) only decided that the entry of a nolle prosequi is not a decision on the merits of the prosecution: the Court in the course of the argument, said that the Attorney-General might issue new process upon the indictment; but, as I have said, I rather think the nolle prosequi puts an end to the prosecution." [emphasis added]

86 If anything, that part of his Lordship's observations that I have emphasised seems to indicate that the Attorney-General might issue new process upon the original indictment in respect of which he has entered a nolle prosequi. That would be consistent with the more modern authorities to which reference has already been made.

87 For the sake of completeness, I note the appellant's submission that in the case of a new trial, a fresh indictment is always preferred. It may be true, as she also submitted, that an indictment cannot be amended after a verdict. But once a jury's verdict is quashed, there is no reason why the original indictment cannot be re-presented and, if necessary, amended before presentation. It is only if it is sought to amend an indictment after presentation that the leave of the court or the consent of the accused is required: Criminal Procedure Act 1986, s 20(1); see also s 21(1).

88 In the present case, it is difficult to see why the court, and, for that matter, the appellant, had there been a new trial, would not have given leave or consent, as the case may be, after presentation to amend the original indictment to delete Counts 3 and 4 (the Court of Criminal Appeal having dismissed the appeal on those counts) and Count 9 on which the appellant was acquitted.

89 In summary, I conclude as follows:

(a) Upon the appellant's conviction on Counts 1, 2, 5, 6 and 7 being quashed by the Court of Criminal Appeal and a new trial ordered, the indictment containing those counts remained on foot and was extant as at the time the Director determined not to proceed further;

(b) As the indictment was extant as at 22 September 2005, it was open to the Director pursuant to s 7(2)(b) of the DPP Act to enter a nolle prosequi on those counts in respect of which the Court of Criminal Appeal had ordered a new trial;

(c) The direction of the Director on that date that no further proceedings be taken against the appellant on the outstanding charges constituted the entry of a nolle prosequi;

(d) As this Court is bound by the decision of the High Court in Davis, it is necessary for the appellant in her action for malicious prosecution to prove her innocence notwithstanding that the entry by the Director of a nolle prosequi in respect of those charges terminated the proceedings against her in her favour;

(e) Accordingly, the primary judge was correct to answer Question A, "Yes".

The cross-appeal

90 The Court of Criminal Appeal entered a verdict of acquittal on Count 9. It did so as the sentence to which the appellant was subjected in respect of that count had already been served so that an order for a new trial would not be appropriate. Accordingly, there was no acquittal on the merits so that the court's decision was based on discretionary grounds. On that basis the respondent submitted to the primary judge that the order for acquittal on that charge was analogous to the entry of a nolle prosequi with the result that the appellant needed to prove her innocence in relation to that charge.

91 At [71] of his reasons the primary judge rejected that submission. He said:

"For whatever reason the Court of Criminal Appeal directed that a verdict of acquittal on count 9 be entered. Further, the High Court made clear in Smith that the decision in Davis v Gell concerned only the effect of entering a nolle prosequi, and said that the decision could not be extended further both on principle and on the authority of the decision of the Privy Council in Balbhaddar Singh v Badry Sah (PC No 66 of 1924). The only circumstance where innocence must be proved is where the proceedings terminated by the entry of a nolle prosequi."

Accordingly, he answered Question B, "No".

92 On the cross-appeal the respondent submitted that the appellant was not acquitted on Count 9 after a hearing on its merits. It repeated its submissions to the primary judge that the acquittal was analogous to a decision by the Director to enter a nolle prosequi in respect of that charge. Accordingly, the same principles should apply so that, as he was bound by Davis, his Honour should have answered Question B, "Yes".

93 An acquittal is an acquittal. No authority was cited which would support the proposition that in the present context the court was entitled to go behind the acquittal to determine the basis for it. Importantly, in Smith the judgment made it clear (at 543) that Davis was confined to criminal proceedings which were terminated by the entry of a nolle prosequi and that it "cannot be extended further".

94 Furthermore, nothing was said in the joint judgment in Smith which would support the proposition that when considering whether a plaintiff in an action for malicious prosecution must prove his or her innocence, the court is entitled to have regard to the reasons for the decision to terminate the prosecution whether that be on the basis of the entry of a nolle prosequi or on some other basis. Although it was submitted that a determination by the Director pursuant to s 7(2)(a) not to found a bill of indictment would normally convey that the Director considered that the prosecution could not prove its case beyond reasonable doubt, that is not necessarily the only reason for such a decision by the Director.

95 Although lack of merit may well be the primary reason why a no bill is found, there is nothing to support the proposition that that is the only basis upon which the Director can no bill a person who has been committed for trial. The rejection in the joint judgment in Smith of the statement by Starke J in Davis which I have recorded at [47] above (except in the case of a nolle prosequi) puts paid to the contention that the relevant criminal proceedings can only be terminated in favour of a plaintiff in a malicious prosecution action if that termination is based on the merits (or lack of them) of the prosecution's case.

96 Accordingly, as a consequence of the decision of the High Court in Smith I can see no proper basis for extending the effect of the decision in Davis to the acquittal of the appellant on Count 9. It follows that the primary judge was correct in answering question B in the negative.

Conclusion

97 In my opinion, both the appeal and cross-appeal fail. I would therefore propose the following orders:

(a) Grant the appellant leave to appeal and the respondent leave to cross-appeal;

(b) Dismiss the appeal and cross-appeal, in each case with costs.

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Decision last updated: 04 May 2012