On the afternoon of 21 May 2012 there was an altercation between Mr Sahade and Mr Smith (the appellants) and Mr Bischoff (the first respondent) at a property where Mr Sahade, Mr Bischoff and Mrs Bischoff (the second respondent) occupied separate residences. CCTV cameras captured most of the altercation as it occurred.
Police attended the property after being called by Mrs Bischoff. Having reviewed the CCTV footage and obtained statements, police arrested and charged Mr Sahade and Mr Smith with two assault offences. In July 2012 they were charged with a further offence of assault occasioning actual bodily harm in company. The charges against Mr Smith were withdrawn and dismissed in the Local Court in December 2012. The charges against Mr Sahade were dismissed in the Local Court in April 2013.
Following the dismissal of the criminal charges, Mr Sahade and Mr Smith commenced proceedings in the District Court of NSW against the Bischoffs claiming damages for malicious prosecution. Mr Sahade also claimed damages against Mr Bischoff for 5 alleged assaults and batteries. The Bischoffs brought a cross-claim against Mr Sahade for trespass to their property. After a hearing lasting 8 days, the primary judge dismissed the claims of all parties (Sahade v Bischoff (District Court (NSW), McLoughlin DCJ, 10 October 2014, unreported).
In a second judgment, the primary judge determined that he was wrong as a matter of law in finding, in his first judgment, that actual damage was required to be proven in a claim for trespass to land before an award of damages could be made. He set aside the verdict in favour of Mr Sahade on the Bischoffs’ cross-claim and awarded damages against Mr Sahade for trespass in the amount of $500 (Sahade v Bischoff (District Court (NSW), McLoughlin DCJ, 29 January 2015, unreported).
Mr Sahade and Mr Smith appealed. The Bischoffs sought leave to cross-appeal against the award of damages and the costs orders made against Mr Sahade and Mr Smith.
Mr Sahade’s pleaded case in the District Court was that Mr Bischoff assaulted and beat him on 5 occasions during the altercation on 21 May 2012. In addition, Mr Sahade and Mr Smith both alleged that the Bischoffs knowingly made false and misleading statements to the police claiming that Mr Bischoff was assaulted by Mr Sahade and claiming that Mr Smith held Mr Bischoff down whilst Mr Sahade assaulted Mr Bischoff. It was further alleged that each of the Bischoffs were substantially and sufficiently involved in the procurement, institution and maintenance of the criminal charges to be a prosecutor in respect of those charges; that the proffering of the charges against Mr Sahade and Mr Smith was done maliciously and without reasonable and probable cause, and further, was not done in good faith.
THE ALLEGED ASSAULTS
The primary judge was confronted with conflicting oral testimony of the parties concerning the altercation and its aftermath. He was assisted by the objective evidence contained in the CCTV footage, photo stills and mobile phone camera video recordings. His Honour found each witness to be unreliable and gave reasons why he did not accept their evidence, except where the CCTV evidence supported it.
Mr Sahade contended that the primary judge’s factual findings were erroneous in a number of respects and did not accord with the CCTV footage and photographic stills. The Bischoffs emphasised that selected extracts of the CCTV footage contained in individual photographs gave an incomplete picture of the events that occurred. After reviewing the available evidence, the Court of Appeal held that the primary judge did not err in his findings.
Mr Sahade also submitted that his Honour applied the incorrect test and incorrect onus for the defence of self defence pursuant to sections 52 and 53 of the Civil Liability Act 2002 (NSW) (CLA). In finding that the primary judge did not err in his approach to the defence of self-defence, the Court of Appeal confirmed that pursuant to section 52 of the CLA, the onus of proof is on the defendant to plead and prove, on the balance of probabilities, that the conduct was carried out in self defence: Presidential Security Services of Australia Pty Ltd v Brilley  NSWCA 204; 73 NSWLR 241. The Court of Appeal also noted State of New South Wales v McMaster  NSWCA 228 that “unlawful” conduct is not confined to criminal conduct but extends to conduct which is tortious. The Court of Appeal found that the onus of proof in respect of section 53 of the CLA rests with the plaintiff since the provision operates to prevent a court awarding damages against the defendant, unless it is satisfied of the matters required to make out the exception.
The primary judge found that while there was some unreliability in relation to the evidence of Mr and Mrs Bischoff, neither was substantially and sufficiently involved in the procurement, institution and/or maintenance of the criminal charges against Mr Sahade and Mr Smith to become prosecutors. His Honour reasoned that it was the police who decided to charge Mr Sahade and Mr Smith, relying partly on the statements provided by the Bischoffs, but after they had interviewed all of the prospective witnesses and viewed the totality of the CCTV footage. His Honour also found that in providing statements to the police, the Bischoffs did not act maliciously or without reasonable or probable cause.
It was put in issue at trial and again on appeal whether the Bischoffs were prosecutors, and if so, whether they acted maliciously and without reasonable and probable cause in making certain statements to the police. Mr Sahade and Mr Smith asserted that the statements given by the Bischoffs to the police were false and objectively false by reference to the CCTV footage. They asserted that His Honour should have found that the Bischoffs’ statements were deliberately false. They also contended that the police were not able to assess the truthfulness of the information provided by the Bischoffs and did not in fact do so.
The Court of Appeal observed that even though His Honour did not accept the reliability of part of the Bischoffs’ statements to police this does not mean that their police statements were false. The Court of Appeal found that:
- it is not in a position to make a credit finding that the Bischoffs’ statements to police were deliberately false. On this point, the best the appellants could achieve would be a new trial;
- the relevant facts were not so exclusively within the Bischoffs’ knowledge that it was virtually impossible for the police to exercise any independent discretion to prosecute the appellants. The incident was captured by CCTV cameras and the police viewed the footage and obtained statements at the premises before charging Mr Sahade and Mr Smith. Police were not compelled to lay charges based on the information exclusively in the Bischoffs’ knowledge;
- the present case to be distinguishable from cases such as State of New South Wales v Abed  NSWCA 419; and
- His Honour did not err in concluding that the Bischoffs were not the prosecutors, in the sense of being the instigators of the prosecution by the police.
Mr Sahade’s contention that the Bischoffs maintained the prosecution required the acceptance of the proposition that they gave evidence before the Local Court which they knew was false. In support of this assertion, Mr Sahade relied upon the CCTV footage to demonstrate an objective falsity of the Bischoffs’ statements to the police, which they adhered to in the Local Court prosecution. After reviewing the evidence available to the primary judge, the Court of Appeal found that the appellants failed to make out the contention that the Bischoffs maintained a prosecution against Mr Sahade by giving deliberately false evidence before the magistrate.
The Court of Appeal’s judgment provides a useful analysis of the law in respect of sections 52 and 53 of the CLA and who is a prosecutor for the purposes of the tort of malicious prosecution.