- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
12 December 2002
11 December 2002
That there be judgment for the second defendant with costs to be assessed on the standard basis on the plaintiff’s claim against the second defendant for malicious prosecution.
SUMMARY JUDGMENT – circumstances in which persons other than a prosecuting body acts as a prosecutor
Criminal Law (Sexual Offences) Act 1997 s 7, s 10(3)
Commercial Union Assurance Co of NZ Ltd v Lamont (1989) 3 NZLR 187
Mr Balson appeared on his own behalf
Mr Balson appeared on his own behalf
The nature of the application
 The applicant second defendant applies pursuant to r 482 of the Uniform Civil Procedure Rules for an order that there be a separate determination of the issue of whether the plaintiff’s claim for malicious prosecution against the second defendant should be dismissed.
 The application is thus one for a separate trial of a particular issue. The applicant’s outline of submissions proceeds on the basis that, in order to succeed, the tests in cases such as Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways must be satisfied. Those authorities concern the dismissal of proceedings or the striking out of pleadings on the basis that no cause of action has been disclosed. It seemed to me to be more appropriate that the application proceed as an application for summary judgment under r 293(2) of the Rules which permits the court to give judgment for a defendant against a plaintiff on the whole or part of the plaintiff’s claim if satisfied that –
“(a)the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim; and
(b) there is no need for a trial of a claim or part of the claim.”
 As the respondent was self-represented, I did not consider it appropriate that the hearing continue without his being afforded a further opportunity to consider the case against him and it was adjourned to 11 December. It was directed also that the respondent provide further particulars of some material allegations in the statement of claim with a view to clarifying the scope of his case.
The Claim and Statement of Claim
 The respondent claims against the State of Queensland and the applicant for damages for malicious prosecution. He also claims damages for defamation against the applicant and for false imprisonment against the State of Queensland.
 The allegations in the statement of claim of particular relevance for present purposes, in summary, are –
(a) It was published on the Internet on 27 July 1999 that William D’Arcy faced 47 child sex charges;
(b) On 29 July 1999, a police officer, Constable Leanne Myers, maliciously and without reasonable cause caused the respondent to be charged with breaching s 10(3) of the Criminal Law (Sexual Offences) Act 1979 (“the Act”) by publishing the above matter on the Internet;
(c) On or about 27 July 1999, Sue Monk, an employee of the applicant, wrote to the Director of Public Prosecutions informing him that the publication was authorised by the respondent thereby causing Constable Myers to prefer the charge;
(d) Before and shortly after the arrest of the respondent on 30 July 1999, the applicant was having improper communications with the State of Queensland and vice versa “outside the accepted line of communication following [the applicant’s] complaint … on more than one occasion … and had the primary aim of damaging the reputation of the plaintiff … and to further maliciously procure the preferment of the said charge …”;
(e) On or about 27 or 28 July, the applicant provided a copy of the material downloaded from the Internet to the solicitors for D’Arcy intending that they would complain to relevant authorities thereby further causing or procuring the preferment of the charge. Such a complaint was made;
(f) The applicant also caused a copy of the publication to be distributed to the media on 28 July 1999 with the intention of creating publicity, and exerting pressure of the State of Queensland “to further cause or procure the preferment of the charge”;
(g) On or about 30 July 1999 the applicant provided a copy of the publication to the Queensland Police Service “and thereby further caused or procured the preferment of the said charge”.
(h) The applicant acted as it did “maliciously and without reasonable or probable cause”.
 On 27 July 1999 Ms Monk, a Courier-Mail reporter sent the following fax to Mr Miller QC, the Director or Public Prosecutions –
I’m sending a copy of an Internet site, authored by Scott Balson (One Nation’s Webmaster), which names the MP at the centre of child sex allegations.
If you could ring me or fax me to answer the following questions it would be much appreciated:
1.What charges could Mr Balson face for naming the MP?
- Could the comments risk aborting the trial?
- Will the DPP take action against Mr Balson?
- As the site is an American one but published by an Australian – Do Aust(sic) defamation laws still cover them?”
 Accompanying the fax was a printout of material downloaded from an Internet site bearing a heading “Australian National News of the Day:” The following appeared on this material under the that heading –
“[One Nation on-line DISCUSION forum] [ One Nation Web Site]
Bill D’Arcy is currently at the centre of child-sex allegations in Brisbane. He was named by the “Courier-Mail” in September last year. Among the 47 child-sex charges he faces are one that he sexually assaulted the same girl for six months when he was a teacher in the 1970s.”
 Also on 27 July, a copy of the downloaded material (which, for convenience, I will refer to as “the Internet Publication”) was faxed from AAP’s Brisbane newsroom to D’Arcy’s solicitors. That day, Ms Ainsley Pavey, an AAP reporter wrote an article, for distribution outside Queensland, which contained discussion by Mr MacGroarty, Mr D’Arcy’s counsel, concerning the Internet Publication.
 On 28 July, two days after the commencement of the committal hearing Mr MacGroarty alleged that the publication of the subject materials on the Internet constituted an offence under the Act.
 Mr Bullock, the Crown Prosecutor with the carriage of the D’Arcy committal hearing, then informed the magistrate conducting the hearing that a person referring to himself as Scott Balson had telephoned him that morning identifying himself as the publisher.
 Also on 28 July, Mr D’Arcy’s solicitors wrote to the then Attorney-General, Mr Foley, forwarding a copy of the Internet Publication and requesting that the “offending party” be prosecuted.
 The Attorney-General responded to the letter the same day stating, inter alia –
“After receiving advice from the Director of Public Prosecutions, Mr Royce Miller QC, I have today authorised the Crown Solicitor to take urgent steps to investigate and, if appropriate, to prosecute an alleged breach under Section 7 of the Criminal Law (Sexual Offences) Act 1978 relating to the alleged publication of the name of the defendant in committal proceedings who is charged with prescribed sexual offences.”
 A memorandum of 29 July from Detective Inspector Tutt of the Queensland Police Service to “Detective Superintendent Crime Operations Branch” advised that Mr Conrad Lohe of the Crown Solicitor’s Office had been “Briefed in relation to this matter and is seeking approval from the Attorney-General”. The subject of the memorandum was “Request for Authority to Institute proceedings against Scott Charles Balson”.
 On 29 July 1999 the Attorney-General, in writing, authorised Constable Myers to prosecute the respondent for an offence against the Act. During the day, an investigating police officer telephoned the Courier-Mail’s offices and was told that a copy of the Internet Publication was at those offices. Also on 29 July police officers were informed by the respondent’s solicitors that he did not wish to be interviewed.
 Prior to application being made on 30 July for a search warrant for the purpose of searching the respondent’s home, a police officer working on the prospective prosecution noted these matters –
“On the 28th July 1999, a complaint was received from solicitors acting for D’ARCY, Robertson O’Gorman that their client’s name had been published via the Australian National News of the Day web site on the internet. Section 7 of the Criminal Law (Sexual Offences) Act 1978 states that the name of a defendant in a trial of a prescribed sexual offence, cannot be revealed or published before that defendant is committed to trial.
The Australian National News of the Day web site is written and edited by a Charles Scott BALSON, who has an affiliation with the One Nation Party. BALSON’s business name is Interactive Presentations Hosting the Net.
On the morning of the 28th July 1999, Crown Prosecutor for the D’ARCY matter, David BULLOCK, allegedly received a telephone call from BALSON to say that he was responsible for publishing the web site.
Copies of the web site provided to Police from Task Force Argos clearly nominates D’ARCY as being charged with sex offences against children. (Copy attached) A check of BALSON’s web site on 29 July 1999 indicates that D’ARCY’s name has been removed from the site.
Checks with Telstra confirm this address. Telstra checks also indicate that an Internet connection in the name of Interactive Presentations is also located at this address.
 The respondent was charged with revealing in a statement published by him the name of a defendant “charged with a prescribed sexual offence namely rape to which the said statement related before the defendant was committed for trial or sentence upon those charges.”
 The respondent’s trial on 20 March 2000 resulted in an acquittal, the learned magistrate by whom the matter was tried holding that the Crown had failed to prove its case. The respondent did not give or call evidence.
Further particulars of the respondent’s allegations
 The respondent’s further particulars of his allegations of improper communications between the applicant and the Crown are both voluminous and diffuse. The following is an attempted summary. One or more Courier-Mail reporters were present when, prior to being charged, the respondent presented himself at Police Headquarters, and when he was released from the watch house after his arrest. From their presence, it may be inferred that there was a communication between the applicant’s reporters and police officers concerning the respondent.
 Reference is made to communication on 30 July 1999 between an employer of the applicant and a police officer concerning the Internet Publication which is said to have resulted in a search by the police of the Courier-Mail’s offices at Bowen Hills.
 It may be inferred from an incident on 7 March 2000 in the office of a police prosecutor in Ipswich, to which the respondent was privy, that a reporter from the Courier-Mail was pestering the police prosecutor concerning the forthcoming hearing of the charge against the respondent. The police prosecutor is reported by the respondent as saying, “It’s the bloody Courier-Mail about your case. They just won’t leave us alone”.
 Copies of the Internet Publication are alleged to have been provided by an unidentified reporter (presumably from the Courier-Mail) to other reporters before 10am on 28 July.
 An “association” existed between Ms Pavey of AAP and the applicant. That may be inferred from the publication by the applicant of some of Ms Pavey’s articles. There is also evidence which suggests that, in order to prosecute the police had to rely on a copy of the Internet Publication supplied by Ms Pavey or the applicant.
Applicable legal principles
 The elements of the tort of malicious prosecution are –
1. the prosecution of the plaintiff by the defendant;
2. that the proceedings complained of terminated in the plaintiff’s favour;
3. that the prosecution was instituted without any reasonable and probable cause;
4. that the defendant instituted or continued the proceedings maliciously.
The applicant’s primary contention is that there is no arguable case that it was the prosecutor.
 The evidence plainly shows that the prosecutor was Constable Myers acting in her capacity as a police officer pursuant to the written authority of the Attorney-General. A person other than the prosecuting authority may be regarded as a prosecutor, however, if that person counsels or procures the prosecuting authority to institute proceedings by dishonestly prejudicing the prosecutor’s judgment or by making a complaint which is false, to the knowledge of that person or by influencing the prosecutor to assist in bringing about the trial of an innocent person.
“The question in all cases of this kind must be – Who was the prosecutor? And the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor is it enough to say, the prosecution was instituted and conducted by the police. That again is a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who pro hac vice represents the Crown.”
 The above observation of Isaacs J and expressions of principle by Dixon J in Commonwealth Life Assurance Society Limited v Brain were referred to with apparent approval by Lord Keith of Kinkel, with whose reasons the other members of the court agreed, in Martin v Watson.
 Lord Keith also placed reliance on a statement of principle in the American Law Institute, Restatement of the Law, Torts and on a decision of the Court of Appeal of New Zealand, Commercial Union Assurance Co of NZ Ltd v Lamont. The passage cited from the Restatement is –
“When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer’s discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. If, however, the information is known by the giver to be false, an intelligent exercise of the officer’s discretion becomes impossible, and a prosecution based upon it is procured by the person giving false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official’s decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.”
 In Lamont, Richardson J, after a review of the New Zealand authorities, said in a passage quoted by Lord Keith with apparent approval –
“To summarise the New Zealand authorities. A defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution. Expressions such as ‘instigate,’ ‘set in motion’ and ‘actively instrumental in putting the law in force,’ while evocative do not provide an immediate touchstone for the decision of individual cases. That requires close analysis of the particular circumstances. In the difficult area where the defendant has given false information to the police that in itself is not a sufficient basis in law for treating the defendant as prosecutor. That conduct must at least have influenced the police decision to prosecute.
It does not follow that there is any call for modifying the test which has been developed in the decisions of this court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police. What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised a having procured the prosecution.”
 Lamont was the subject of detailed consideration by Brooke LJ, with whose reasons the other members of the Court of Appeal agreed, in Mahon v Rahn. After referring to observations of Richardson J to the effect that one should never assume that tainted evidence persuaded the police to prosecute, Brooke LJ formulated the following statement of principle -
“In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?
In the more complex case it is likely to be more difficult to apply these tests, but I would adopt the approach suggested by Richardson J in the Commercial Union Assurance Co of NZ Ltd case when he said that the tests should be the same when the police had conducted an investigation and decided to prosecute, but that they should be cautiously applied. The reason, of course, is, as he also took into account, that prosecuting authorities are trained and accustomed to consider the evidence placed before them with an appropriately critical eye. Crown prosecutors, for instance, have to be satisfied that there is enough evidence to provide a realistic prospect of conviction, and s 5 of the current Code for Crown Prosecutors describes in clear terms the tests they have to apply before they can allow themselves to be so satisfied.”
Is the applicant to be regarded as the respondent’s prosecutor?
 For the purposes of this application, it is proper that I take a view of the evidence which is most favourable to the respondent. Taking that approach, it is seen that the process leading to the prosecution, arguably, was set in train by Ms Monk’s fax to the Director of Public Prosecutions of 27 July. But there is nothing sinister, improper or inappropriate in a citizen, let alone a newspaper reporter, raising with such an officer questions of the nature of those posed in relation to proceedings which were plainly going to be of some public notoriety. If the fax, taken in isolation, was an attempt to procure the Director of Public Prosecutions to prosecute the respondent, it was one of a rather subtle kind.
 I will accept, for present purposes, that on a trial of the action the respondent could establish that: (a) the sending of the copy of the Internet Publication to Mr D’Arcy’s solicitors and the distribution of further copies to media representatives on the 28th was directly or indirectly effected by employees of the applicant; (b) there were communications between employees of the applicant and police officers as alleged in the respondent’s particulars; and (c) reporters employed by the applicant were ill-disposed to the respondent and the One Nation Party and wrote articles adverse to the applicant and One Nation in the Courier-Mail before and after 30 July 1999.
 The applicant, through Ms Monk, brought the Internet Publication to the attention of the Director of Public Prosecutions. At the time, the web site was open to public perusal. A cursory reading of the Internet Publication would disclose to any reasonably informed person, whether lawyer or layperson, the likely existence of a breach of the Act, subject only to questions of territoriality arising from the nature of the Internet. The determination of whether the publication gave rise to such a breach was a task which the Office of the Director of Public Prosecutions was well equipped to undertake.
 Moreover, the employees of the applicant concerned in the events in question could reasonably expect that no prosecution would be instituted before due consideration by skilled and experienced lawyers had been given to the questions of whether an offence had been committed and, if so, by whom.
 Ms Monk’s fax stated, in effect, that the respondent was the author of the Internet Publication. That may not have been proved to the satisfaction of the learned magistrate on the respondent’s trial, but there seems to be little doubt that Ms Monk’s understanding was correct. The plaintiff does not swear to the contrary in these proceedings and it is possible to infer from his own material that he accepts authorship. In his written submissions he says that he is the editor of the Australian National News of the Day, which he describes as his “On-Line paper.” The closest his submissions come to a denial is when he criticises Ms Monk for failing to verify that he was in fact the publisher of the Internet Publication because, as he put it, it had several contributors “who helped me edit and compile the on-line paper.” I note also that he admits telephoning Mr Bullock on 28 July. Mr Bullock gave evidence in the respondent’s trial and was cross-examined by the respondent. It was not suggested to him that the person he spoke to was not the respondent or that Mr Bullock’s report of the admission made in the course of the conversation was in error.
 The evidence reveals that not only did the Attorney-General receive relevant advice from the Director of Public Prosecutions but that the Crown Solicitor was consulted also about the then prospective prosecution.
 In summary then:
- No relevant facts were within the applicant’s sole knowledge;
- the applicant provided only factual information which seems to have been accurate;
- the facts were simple, and known to the prosecuting authorities;
- the prosecuting authorities could have been expected to exercise an independent judgment and in fact did so after advice from senior officers of the Crown;
- there is no evidence that any person who took part in the decision to prosecute or in any decision which led to the institution or maintenance of the prosecution was influenced in relation to the making of that decision by the conduct of the applicant or its employees;
- a formal complaint was made by Mr D’Arcy’s solicitors to the Attorney General and it is reasonable to suppose that it was this complaint which was acted upon.
 Having regard to these matters the respondent has no real prospect of establishing his malicious prosecution case against the applicant. On any sensible view of the facts, the applicant was not the prosecutor in substance. It is fanciful to suggest otherwise, particularly having regard to the simplicity of the facts involved in the charge, the ease with which such facts could be ascertained and the involvement of senior officers of the Crown in the decision to prosecute. There is nothing in the particulars of the alleged contact between employees or agents of the applicant on the one hand and prosecuting authorities on the other which casts doubt on this conclusion.
 In his 40 page outline of submissions the respondent makes much of the applicant’s hostility to him which he submits is apparent from various articles appearing in the Courier-Mail before and after 30 July 1999. He refers in particular to an article in the 30 July 1999 edition of the paper by Mr David Solomon in which it was said –
“… ignorance of the law is of no excuse as publisher Scott Balson may discover for publishing the name of a man facing committal hearings on child sex charges.”
The applicant submits that although the Bulletin magazine published matter in contravention of the Act it, unlike him, was never prosecuted. This, he submits, reveals or suggests something sinister about the way he was treated.
 The different treatment afforded the publishers of the Bulletin may be of relevance to the respondent’s malicious prosecution case against the State of Queensland but it does not appear to me to be of much relevance to his claims against the applicant. There is nothing in the material to suggest that the applicant conspired with Crown employees in relation to the Bulletin publication and, indeed, there is no allegation to that effect in the pleadings. The Bulletin matter may be perhaps of some peripheral relevance in relation to the proof of malice if it can be shown that the applicant acted with a view to procuring the prosecution of the respondent whilst refraining from taking like steps in relation to a comparable transgression on the part of the proprietors of the Bulletin. I do not need to consider the question of malice, however, in order to decide this application.
 Another theme in the respondent’s outline of submissions is the alleged hypocrisy of the applicant in criticising the respondent whilst itself infringing the Act. For reasons which will become apparent I have not found it necessary to determine whether the applicant did in fact breach the Act at relevant times.
 I do not consider that any of these matters can operate to alter my opinion that the applicant cannot be considered to have been the prosecutor for present purposes.
 Courts ought be extremely reluctant to conclude that media articles or reports critical of a person eventually charged with a criminal offence, or even demands that the person be charged, cast the publisher in the role of prosecutor in fact.
 The normal functions of the media in a free and democratic society go beyond the factual reporting of newsworthy events and include commenting on the news and expressing opinions on current affairs and matters of public interest. Such conduct, properly, may include exhortations to authorities to follow a particular course, such as the institution of a prosecution or prosecutions. Equally the media, legitimately, may offer criticism of authorities for failing to prosecute or to otherwise act in a manner which the media contends is appropriate.
 Such conduct may in fact bring pressure to bear on prosecuting authorities. Indeed, the conduct may be engaged in with that end in view. Moreover, the reporting in question may contain factual inaccuracies and exhibit a lack of objectivity and even bias. But it does not follow that where a prosecution is initiated against a person after that person’s conduct has been the subject of media scrutiny, even if amounting to pressure to prosecute, the entity concerned should attract criminal responsibility if the prosecution fails. Conduct of the nature in question takes place in public as part of a political and social system in which it is accepted that prosecuting authorities have both the independence and expertise to properly sift relevant facts, form opinions on questions of law and make serious decisions affecting the reputations and liberty of citizens untrammelled by media influence and other external pressures. Such authorities do not operate in a social vacuum and can be expected to differentiate between media reports and prognostications on the one hand and objective fact on the other.
 Absent quite remarkable circumstances, which do not exist in this case, proof that a prosecuting authority, in dereliction of its duty, had succumbed to media pressure and failed to bring proper and independent judgment to bear on the exercise of a decision to prosecute would not, without more, establish tortious liability on the part of the media entity exerting the pressure.
 The applicant argued also that the respondent had the onus of establishing that the prosecution was instituted without reasonable and probable cause and had failed to do so. Having regard to my conclusion that the applicant cannot be regarded as a prosecutor, it is unnecessary for me to express a concluded view on these submissions. I will content myself with observing that the general inappropriateness of the relevant tests to the circumstances of the applicant supports the view that it was in no sense a prosecutor.
 For the above reasons I propose to give judgment with costs to the applicant against the respondent on the respondent’s claim against the applicant for malicious prosecution and to direct that the respondent amend his statement of claim to delete allegations rendered irrelevant or unnecessary as a result of that judgment.
 I will adjourn the respondent’s cross-application that the signature of the second defendant on the request for trial date form be dispensed with to a date to be fixed and reserve the costs of and incidental to that application.
 I will hear submissions as to the appropriateness of these orders and as to any others which ought be made to give effect to these reasons.
 (1949) 78 CLR 62.
 (1964) 112 CLR 125.
 45 Halsbury’s Laws of England 4th ed para 1371; Little v The Institute of Vic  VR 257 at 262; Commonwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 at 350-1 per Starke J.
 Commonwealth Life Assurance Society Limited v Brain (supra) at 379.
 Davis v Gell (1924) 35 CLR 275 at 282-3 per Isaacs J.
 Davis v Gell (supra) at 282-3.
 (1924) 35 CLR 275.
 At 283.
  1 AC 74 at 81, 82 and 84 respectively.
 2d (1977), s 653.
 (1989) 3 NZLR 187.
  1 WLR 2150
- Published Case Name:
Balson v State of Qld & Anor
- Shortened Case Name:
Balson v State of Queensland
 QSC 419
12 Dec 2002
- White Star Case:
No Litigation History