Statutory immunity under DPP Act applied for first time
1 May 2015
The immunity of a Crown prosecutor under s 25 of the Director of Public Prosecutions Act 1984 (DPP Act) was considered for the first time in Queensland by the District Court in Richardson v State of Queensland  QDC.
The plaintiff commenced a District Court claim against the Crown prosecutor and the State of Queensland for malicious prosecution and false imprisonment. The action arose out of an indictment presented to the court against the plaintiff for dishonestly applying to his own use and use of others property belonging to his employer. A jury subsequently found the plaintiff not guilty of the charge.
The prosecutor and the State made an application to the court to strike out the pleadings on a number of grounds and in the alternative sought summary judgment against the plaintiff on the basis of the statutory immunity afforded by s 25 of the DPP Act.
Section 25 provides immunity from liability for any act or omission done by a person assisting the Director of Public Prosecutions in giving effect to that Act or in performing a function or exercising a power under the Act.
The court made an order for summary judgment in favour of the prosecutor and removed him from the action and struck out the claim against the State.
As Queensland’s immunity provision is worded more broadly than all other States, other jurisdictions’ immunity provisions provided little guidance to the Court. Instead, the Court considered the recent decision of Hamcor Pty Ltd v State of Queensland  QSC 224 which applied the reasoning in the earlier decision of Colbran v State of Queensland  2 Qd R 235 regarding privative clauses of this nature. In Hamcor and Colbran, a similar statutory immunity was considered.
The court referred to the judgment of the Court of Appeal in Colbran, which noted that the High Court has consistently found against granting immunity for acts or things done without any need for the exercise of a statutory power. This is because a law should not deprive a plaintiff of the right to recover damages in tort for any negligent act or omission which is done incidental to an act and without the exercise of a clear statutory power to do so.
Generally, the immunity is divided into two limbs:
- acts or omissions performed by a person under an Act
- acts by a person done in good faith for the purposes of the Act and without negligence.
Under the first limb, all acts and omissions are afforded the immunity provided for under the Act, whether negligent or otherwise. However, under the second limb, acts done for the purposes of or incidental to the Act must be done without negligence and therefore give little or no protection from liability.
The policy considerations underpinning s. 25 of the DPP Act were considered by the Court, citing the decision of Love v Robbins (1990) 2 WAR 510 which held that absolute immunity was necessary to secure independence of the prosecutor and to stem unmeritorious claims.
The court found that the presentation of an indictment which charged the plaintiff with an indictable offence under s. 560 of the Criminal Code and the subsequent conduct of the criminal trial against the plaintiff involved an exercise of statutory power by the Crown prosecutor under both the DPP Act and the Criminal Code. Therefore, the court held that the Crown prosecutor was immune from liability by operation of s 25 and dismissed the claim against him.
The court also considered the decision of Hamcor, which held that the State was a ‘person’ within the meaning of a similar immunity provision in the Fire and Rescue Service Act 1990 and found that in any case, s 25 of the DPP Act was wide enough to provide immunity from liability to the State.
The court struck out the claim as against the State and granted leave to the plaintiff to re-plead any other cause of action in tort against the State. The court observed that it was open to the plaintiff to allege the State was vicariously liable for the actions of a person who did not fall within the immunity provisions in s 25 of the DPP Act.
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Published: 1 May 2015
Author: Paula Freeleagus