Background
Coughlan brought a malicious-prosecution claim arising from his prosecution over a Bribie Island fire. He was charged in 2015, indicted in 2017, and tried three times between November 2017 and June 2018. He was convicted of arson and attempted fraud; after the Queensland Court of Appeal dismissed his appeal, the High Court quashed the convictions and entered acquittals.
In the civil proceeding, Coughlan sought directions that evidence-in-chief be given by affidavit. The parties also disputed requests for particulars concerning Coughlan’s allegation that there was insufficient evidence to lawfully institute the prosecution and the State’s pleaded basis for reasonable suspicion.
The Court’s Holding
Treston J directed that Constable Weare be removed as a defendant, leaving the State of Queensland as the sole defendant. Given the exceptional volume and complexity of evidence generated by the committal and three criminal trials, the Court held that all witnesses’ evidence-in-chief should be by affidavit unless the Court otherwise orders.
The Court accepted that Coughlan’s demeanour could bear on the State’s case, but held that cross-examination would adequately permit assessment of his credit. The Court also required Coughlan to particularise the evidence said to have been insufficient, despite the difficulty of pleading a negative proposition. In turn, after that amendment, the State was directed to file an amended defence that properly particularised the evidentiary basis of its asserted reasonable suspicion and addressed the plaintiff’s requests for particulars.
Key Takeaways
- Affidavit evidence-in-chief may be ordered for all witnesses where an unusually complex case involves a very large evidentiary record.
- A plaintiff alleging insufficient evidence for a prosecution must identify the evidence available when the decision to institute proceedings was made.
- A defence asserting reasonable suspicion must state the evidentiary basis of that suspicion with sufficient clarity.
Why It Matters
The decision is procedural, not a determination of whether the State maliciously prosecuted Coughlan. It establishes a structured path toward trial in a factually extensive claim while preserving cross-examination and the trial judge’s ability to require particular matters to be given orally.
It also underscores that malicious-prosecution pleadings must identify the evidence and decisions in issue. General assertions of insufficient evidence or reasonable suspicion will not adequately define the case for trial.