– Malicious prosecution over false domestic violence claims
Across Australia there are men who have been falsely accused of domestic violence and suffered the dreadful consequences of violence orders based on a pack of lies. But since courts refuse to take action over perjury in such cases, the accuser walks free.
Now there may be a new legal option for victims of lying women to get some justice. A few weeks ago, the High Court gave the green light to a South Australian man (MT) to proceed with his case (MT v SE) of malicious prosecution against his ex-wife over her numerous false violence allegations.
Originally the District Court had ruled that a civil action for malicious prosecution was not possible in domestic violence cases. The Court of Appeal then overturned that decision leading to the ex-wife appealing to the High Court to try to stop MT’s action.
And now the High Court has turned down her appeal. Wow! Won’t that set the cat amongst the pigeons?
Just days before the High Court announced its decision, a University of South Australia law professor, Sarah Moulds, wrote about the MT v SE case warning about the “chilling effect” of successful malicious prosecution cases on “victim-survivors” who might fear their accounts of violence will not be believed by police. This could result in “fewer reports of domestic violence, leaving many without the protection they desperately need,” claimed Moulds.
No mention, of course, of the chilling effects of false allegations on accused men and their children, who are often deprived for years of contact with their dads as a result of these accusations. Clearly this professor believes the law should only protect women.
Included in the MT Court of Appeal judgment was this example of the threats made against MT by his wife when she objected to him seeking more time with his children:
On 25 July 2014, [the respondent] threatened my ability to work as a teacher and blackmailed me in regard to my requests to spend more time with my son by stating in Facebook messages ‘If you want continued phone contact [with our child] and upadates [sic] [regarding our child] I’d leave that right now. Play hard ass with me and I’ll talk to the educaiton [sic] department and the courts. Don’t’ [sic] try it.”
When MT went ahead with efforts to seek more time with his kids, the wife then denied him contact and he lost his teacher’s registration as a result of the physical, emotional and sexual abuse allegations included in her application for intervention orders.
So now he is mounting an action for malicious prosecution, seeking over $104 k for lost earnings plus loss of reputation, and damage to his character – claiming his wife had maliciously used the intervention orders without reasonable cause.
In malicious prosecution, an individual claims that proceedings were initiated against them by another person, the police or the state, in circumstances where they weren’t warranted, were initiated maliciously and without reasonable cause. These actions are normally instituted against prosecuting bodies or police, but there is good law – which the High Court has obviously upheld – to say that, where a citizen’s information is primarily responsible for police taking action against another citizen, and the police cannot really be sure about whether this is true, the citizen can be sued personally for malicious prosecution.
Such an action is normally only available where there has been a criminal prosecution, but the law also allows it in some civil actions. In MT v SE the critical issue was that MT claimed that it was his wife, rather than the police, who actually was responsible for the intervention orders – since she’d supplied the false information which the police had relied on to take out the actual orders. It was argued by the wife’s lawyers that she could not be sued because the police are responsible for taking out the orders, and that she was only, in effect, a witness.
Jo-Anne Deuter, the South Australian District Court judge who first heard the case backed the wife’s position, claiming the cops were responsible, not the wife – shielding her from the malicious prosecution claim.
But the SA Supreme Court disagreed, saying that this conclusion “was, with respect, an inaccurate summary and did not engage with the essential details.” Ouch!
These superior court judges also didn’t buy Deuter’s concern that victims of domestic violence could be deterred from taking out intervention orders if they could be subject to malicious prosecution claims, saying that was “contestable.” (Hogwash, in other words.)
Deuter even stated that, when a victim provides an untrue statement to police, it shouldn’t be assumed the intervention order is being “used for an improper purpose” because the truth of the allegations “is a secondary consideration”. Think about that. Here’s a judge saying the truth of accusations is merely a secondary consideration!
Luckily, our superior court didn’t agree. So, right now, South Australians have the green light from the High Court to proceed with malicious prosecution cases… and we are aware of a number ready to go.
Although the High Court in the MT case indicated that it was ‘premature’ to conclusively decide that malicious prosecution was available in domestic violence cases, by rejecting the appeal they certainly suggested that it is an available option in appropriate cases. It was certainly open to the High Court to definitively rule such actions out, and it did not do so.
In NSW, the key case is Rock v Henderson where the Court of Appeal found malicious prosecution can’t be used to sue a party who sought a domestic violence intervention order because these are not criminal proceedings. Unfortunately, until the High Court definitively rules in favour of such prosecutions, the law in NSW remains governed by the Rock decision. It would be very interesting to see Rock appeal the Court of Appeal decision to the High Court.
There are other complexities to this question of whether intervention order proceedings are criminal. The DV legislation in all jurisdictions does in fact describe these proceedings as civil, which would generally mean they can’t be criminal – but calling a dog a pig does not make it so.
Some of my legal advisers also argue that, whenever the state (the police) take action against a citizen which punishes that citizen, then that action is criminal in nature. And, when police take action with regard to an intervention order, the result of that action is arguably a punishment (forced to leave the home, prevented from seeing children, etc.)
The ‘ankle-bracelet’ case (YBFZ v Minister for Immigration) recently decided by the High Court, involved detainees being electronically monitored by the Commonwealth, without a Court making that decision. The High Court verdict determined that only a Court can punish a citizen. Not the state. And not the police.
The same rationale should apply to interim or temporary domestic violence orders, made by police without the oversight of a court; bringing into question the constitutional validity of these orders. (Note: This part of it only applies to interim orders – the temporary ones police grant before seeking a final order in court. In Queensland proposed new amendments will allow these to go for 12 months!)
Heady stuff, I know. These legal complexities do my head in. But these issues are of critical importance – surely it matters if domestic violence laws as they currently stand could be unconstitutional. We’re seeking reaction from lawyers who follow my blogs – please get in touch if you have anything to contribute.
Returning to Rock, we now have the High Court apparently rejecting the NSW Supreme Court’s essential argument that malicious prosecution can’t apply because these aren’t criminal matters. The Court also, by inference, dismissed the NSW judges’ concern that allowing malicious prosecution in such circumstances would “spawn satellite litigation” when accused men seek reprisal for the impact of the false allegations.
That’s exactly what we have in mind. A string of successful malicious prosecution cases could throw a spanner in the works of the huge false allegations industry.
We’re keen to encourage as much satellite litigation as possible to use our court to bring liars to account. Yes, these complex civil actions often require lawyers, and deep pockets. But know that MT in South Australia self-represented right through his battles so far. It can be done! (If you have a good case, we might be able to find legal support to make this easier.)
Where things stand at the moment, if Rock (the ex-husband) appealed to the High Court, it looks likely that the NSW Court of Appeal decision would be overturned. Of course, that is not to say that the Rock would ultimately succeed in his case. Each case still needs to establish the requirements of malicious prosecution.
The most important point about malicious prosecution is that none of this would be necessary if our police and judges did their jobs. The women targeted in malicious prosecution cases are liars, people found to have perjured themselves in court.
“Perjurers are quite simply criminals. They should be dealt with as such by the courts,” says a recently retired barrister with 40-years-experience in courts across Australia. He spells out the fact that, under both state and federal laws, perjury is regarded as a very serious criminal offence, yet most judicial officers are point blank refusing to take action over blatant perjury.
In a paper prepared for a continuing education course, the barrister outlines the consequences of this judicial failure. He tells the story of a woman seeking a DV order who alleged her estranged partner had “tailgated me through town in his huge quarry truck” terrifying the five kids she had in the car. Records from the man’s vehicle logbook and the mine where he worked conclusively proved he was 100 miles away at the time. Similarly, allegations that the child was suffering three anxiety attacks a day through being traumatised by the appearance of his father at a school sports day were disproved by school records and medical evidence.
Despite all of these fabrications being proven as lies, the woman walked out of court completely unpunished – even though she had previously been heavily criticized by another magistrate for raising other baseless allegations. The costs order for the husband was refused with a bad-tempered snarl from the bench.
For this barrister this was just one of more than 60 cases involving DV applications based on lies. “There simply must be serious consequences and sanctions for telling lies on oath,” he says, arguing judges should be compelled to make this happen.
But that would take legislative action, which is hard to see happening with most of our current governments firmly locked into a believe women narrative. It’s quite a challenge to demand action over a problem which the powers that be determine doesn’t exist. How can we compel judges to take action over false allegations when all our key institutions, including our craven media, pretend it never happens?
A few months ago, a story hit the news of a rare case of false evidence to the family court resulting in 18 months imprisonment for the perjurer. You guessed it. The villain was a man – a Melbourne bloke who gave false evidence in the Family Court about his $4 million in assets.
“I hope this case sends a message to anyone who thinks dishonestly might get them a more favourable ruling from the courts,” said a police officer to The Guardian. The article failed to include a single word about false allegations from women.
Midst all this doom and gloom, the news from the High Court is a rare glimmer of hope. One small step for mankind. And we should celebrate this small success.