Facts
Shortly after 10pm on Good Friday, 3 April 2015, Mr Cosenza was stopped by Brevet Sergeant Graham of South Australia Police (SAPOL) after he was observed to be driving his car erratically. When asked to submit to an alcotest, he refused and became angry and argumentative, and “shaped up” to B/Sgt Graham. He was placed under arrest for failing to submit to an alcotest, but appeared to suffer a medical episode while being handcuffed. He was accordingly released from police custody and transported to hospital, where a blood sample was taken.
Mr Cosenza’s blood sample revealed a blood alcohol concentration of 0.011, being well within the prescribed legal limit.
B/Sgt Graham nevertheless proceeded to charge Mr Cosenza with the offence of refusing to submit to an alcotest under s 47E of the Road Traffic Act 1961 (SA).
SAPOL made four unsuccessful attempts to serve Mr Cosenza with a summons to attend court by attending his property. Eventually, Senior Constable De Bono, a police prosecutor, sought and obtained a warrant for Mr Cosenza’s arrest from the Magistrates’ Court. Notably, the application included a “no bail” endorsement, which would render police unable to grant Mr Cosenza bail upon his arrest.
On 30 August 2015, Mr Cosenza was arrested and held in custody overnight, before being granted bail by the Magistrates’ Court the following morning.
The prosecution was maintained for several months by officers other than S/C De Bono, until 3 May 2016 when the charge was withdrawn predominantly on ‘public interest grounds’.
Procedural history
Mr Cosenza brought civil proceedings against the State of South Australia advancing several causes of action, including:
- False imprisonment, assault and battery in relation to the alleged unlawful ‘roadside arrest’ by B/Sgt Graham;
- False imprisonment in respect of an alleged unlawful arrest during the execution of the arrest warrant;
- Malicious prosecution by various officers in respect of the charge of refusing an alcotest;
- Misfeasance in public office by S/C De Bono in obtaining the arrest warrant; and
- Trespass by the SAPOL officers who attended Mr Cosenza’s property attempting to serve a summons on him.
The trial judge dismissed all of Mr Cosenza’s claims save for the trespass claims, which her Honour found to be established on the basis that Mr Cosenza had revoked the implied licence of police to enter his property. Mr Cosenza was awarded $40,000 plus interest.
Mr Cosenza appealed against the trial judge’s dismissal of his other claims.
The State cross-appealed against the award of damages for trespass.
Appeal decision
The Court of Appeal ultimately held, inter alia, that:
- Mr Cosenza’s claim for malicious prosecution in respect of S/C De Bono’s application for a “no bail” arrest warrant was established1
- Mr Cosenza’s appeal should otherwise be dismissed.2
- Regarding the trespass claim:
- The State’s cross-appeal was established;3
- Mr Cosenza did not have standing to bring the claim as his interest in the property only amounted to a licence or lodging arrangement;4
- The sign at the front of the property was inadequate in terms of size and positioning to amount to effective communication of revocation of the implied licence;5
- The claim should be dismissed on the basis that the SAPOL officers were not personally aware of Mr Cosenza’s previous communications with SAPOL in which he revoked the implied licence6
Discussion
In this ruling, the Court of Appeal confirmed that the tort of malicious prosecution is not confined to the initiation and maintenance of criminal proceedings, but may also extend to taking the step of procuring an arrest warrant.
Their Honours accepted that there was evidence that the relevant officers involved in the prosecution had reasonable and probable cause for instituting and maintaining a prosecution against Mr Cosenza. However, although the broader claim of malicious prosecution was not sustainable, the plaintiff had successfully established a narrower claim in malicious prosecution, which was confined to the actions of S/C De Bono in procuring an arrest warrant with a “no bail” endorsement against Mr Cosenza.7
Applying the elements of malicious prosecution identified in A v State of NSW (2007) 230 CLR 500, the Court found as follows:
- Initiation of proceedings by the defendant: S/C De Bono was the prosecutor for the purposes of the law of malicious prosecution, having applied for and procured the issue of a warrant for the arrest of Mr Cosenza. Moreover, she was not acting under instruction, and her supervisor S/Sgt Watterson gave evidence that he was unaware of the application.
- Termination in plaintiff’s favour: The charge of failing to submit to an alcotest was ultimately withdrawn, and so was terminated in Mr Cosenza’s favour. It was noted that the application for and execution of an arrest warrant was not capable of such termination and therefore did not preclude an action for malicious prosecution.
- Absence of reasonable and probable cause: There was no reasonable and probable cause for the issue of a “no bail” arrest warrant. The validity conditions were not met, and there did not appear to be any plausible reason for requesting a “no bail” endorsement, as the charged offence was not punishable by a custodial sentence, and Mr Cosenza was not suggested to be a flight risk.
- Malice: The Court inferred malice from the following combination of circumstances:
- The preconditions to the validity of the arrest warrant were not satisfied, and there was no evidence that S/C De Bono was mistaken as to those requirements.
- The application for an arrest warrant with “no bail” was not reasonably justified for the purposes of bringing Mr Cosenza before the court to answer the charge. S/Sgt Watterson recognised that the application was ‘inappropriate’ and ‘disturbing’, and did not reflect the ordinary practice of the police prosecution branch.
- Mr Cosenza had previously brought action against the State based on alleged misconduct by S/C De Bono; this history was “apt to produce animosity” by her towards Mr Cosenza.
- Despite the above, S/C De Bono failed to disclose this history as a conflict of interest to her supervisor.
- S/C De Bono’s comments to B/Sgt Graham were indicative of her animosity towards Mr Cosenza and the motivation behind the application, to the effect of: “Fuck him, he’s being a pain in the arse … the magistrate will issue a no bail warrant for him”8
Having regard to the above circumstances, the Court concluded as follows:
“The inference we draw as the most probable inference, in the absence of any contradictory evidence from Senior Constable De Bono, is that she decided to seek an arrest warrant with a “no bail” endorsement to punish the appellant for being a “pain in the arse”, both in relation to his past dealings with her and the difficulties he had presented in relation to service of the summons for the alcotest charge. That was not a proper purpose for seeking the issue of an arrest warrant with a “no bail” endorsement.”9
Key takeaways
This decision draws a clear distinction between the lawfulness of specific actions taken in the course of a criminal proceeding, and the broader prosecution as a whole.
Even where charges are properly brought, liability for malicious prosecution can still attach to a single step in the proceeding （such as procuring an arrest warrant） if that step is taken for an improper purpose or amounts to an abuse of process.
Authors: Jasmine Holmes and Jeremy King.
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
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