A malicious prosecution is a tort – a wrong act – that allows an individual who has been subjected to unjustified court proceedings to take civil action against those responsible for their groundless prosecution.
The High Court set out in 2013’s Beckett versus NSW that in order to prove a malicious prosecution it must be shown that the defendant brought the prosecution, that it was terminated favourably to the plaintiff, that the defendant acted with malice and that the prosecution was unreasonable.
Dr Andrew Katelaris and Paul Robert Burton last week filed a malicious prosecution against NSW Director of Public Prosecutions (DPP) Lloyd Babb and NSW Department of Communities and Justice secretary Michael Coutts-Trotter.
The plaintiffs are seeking damages over charges laid and subsequently dropped that related to the breaching of court orders. The pair had advised the senior public officials that the orders wouldn’t hold, but the prosecution was continued until the charges were dropped following a court challenge.
No right to know
Despite those charges being dropped, both Burton and Dr Katelaris are still facing a number of criminal charges that relate to some July 2017 social media posts that were made on Burton’s Facebook page.
The reason these posts caused controversy is that they referred to the name of a boy, who’d been forcibly removed from his family by the then NSW Department of Family and Communities Services (FACS) and the child was also the subject of a Children’s Court case.
Burton has on numerous occasions raised the point that at the time the action was taken against the doctor and himself, there were thousands of people on social media mentioning the same boy’s name, and a major television network named him as well.
And the pair are the first people to be charged under section 105 of the Children and Young Persons (Care And Protection) Act 1998 (NSW) (the CYPCPA), which makes it an offence to mention the name of a child who has or is likely to be the subject of court proceedings or is or has been in state care.
Social justice warriors
At the time the charges were laid, Burton was the secretary of the Church of Ubuntu and Dr Katelaris was consulting for the “multi-faith group”. Today, Burton continues his fight for social justice as a minister of religion, a bard and a staunch human rights advocate.
While renowned medicinal cannabis practitioner Dr Katelaris managed to elude some very serious drug charges in 2018, when he successfully argued the defence of medical necessity, which meant he was right in manufacturing and supplying illicit cannabis oil to patients in need.
Sydney Criminal Lawyers spoke to Mr Burton and Dr Katelaris about the malicious prosecution they’ve just served, why, three years on, they’re still pursuing these matters, and how they’re aiming to have a jury sit in on their civil case.
Back in July 2017, you were both charged over some posts on your Facebook page, which mentioned a boy who could not be named publicly due to a suppression order, as he’d been taken into the care of FACS.
Both of you have been involved in challenging this matter in various ways ever since. Why would you say it’s been important to do so?
Burton: Firstly, I’ve committed no crime, and have never ever knowingly breached any court orders or legislation. So, I would never plead guilty to something that I have not done.
I was aware, along with thousands of other people on social media, that the removal of the child was unlawful, as the reasons stated for the child’s forced and violent removal were known to be untrue, and yet, FACS still removed the child.
The child, the child’s family and many other people, including myself, were violently assaulted.
The child was at risk of significant harm, not because of the family, friends or supporters, but because of the poor decisions of FACS caseworkers, who often make decisions to remove children that are not evidence-based and without judicial oversight.
This removal was a warrantless removal under section 43 of the CYPCPA. With all warrantless removals in NSW, the FACS secretary has a responsibility under that same act – section 45 – to provide the court with reasons for that warrantless removal.
This is not occurring in the NSW Children’s Court. Children are being removed without a warrant or explanation and consequentially without any true judicial oversight.
Further to this, the NSW Children’s Court president Peter Johnstone has himself said that he approves around 99 percent of all cases before him.
That is, the court merely accepts FACS submissions and parents have, in my view, next to no hope of getting their children back, with the emotional impacts being disastrous.
Judicial officers claim to be creatures of statute. Yet, we find clear and defined examples in the closed Children’s Court, where these statutory obligations are not being fulfilled.
Not only with section 45, but also in regard to the making of suppression orders and the courts duty to inform other interested parties.
We have been criminally charged for offences relating to orders made in a closed Children’s Court, and we, of course, knew nothing of what occurred in that closed court.
We are in a position where that evidence has to come out from the closed court into the open criminal jurisdiction to attempt to prove the case against us.
We hope this will help shed some much-needed light onto what’s hiding behind those closed doors.
FACS has now been merged with Justice to form the NSW Department of Communities and Justice. The secretary of that department now has far reaching powers over FACS, public housing, the police, court administration, prisons, Legal Aid, youth justice, and the fire service.
This draconian overreach of power has dire consequences for a system already in crisis.
And although our court matters are in NSW, they raise significant constitutional arguments at law that are essential to protecting any semblance of a democracy.
The child in question and his family came to me for spiritual counsel and support when they were being persecuted by Child Protection in Queensland. And they went to Dr Andrew for his skills and support.
This child is how we met. And we both clearly shared the same view that the government department charged with the responsibility to protect children from risk of harm, in reality, was causing significantly more harm to that family.
And lastly, FACS and the courts often publicly acknowledge that the families caught in this judicial process love their children.
If a parent loves their child, they should not have their child forcibly removed or denied near all contact. This is like torture and destroys families and their lives and the trauma is often irreversible.
Child removals should be an absolute last resort in genuine situations of children clearly being harmed, not something decided by largely unskilled caseworkers with minimal qualifications.
This leads to a situation where the system profits from removals of children and does not profit from helping families stay together.
Katelaris: Until I witnessed first-hand the draconian methodology employed by FACS to seize children from loving and devoted parents, under demonstrably false pretensions, I could not accept that such practices were taking place in Australia.
Since then, it has become obvious to me that such behaviour is in fact commonplace. This gives NSW the dubious distinction of having one of the highest per capita seizure rates in the world.
Having met several parents of seized children and seeing their utter despondency at the injustices that have befallen their families, doing nothing was not an option.
Section 105 of the CYPCPA is a grotesque abuse of legislative power and in conflict with the values of open government.
The two of you have been challenging these matters in several different court cases since the time the charges were laid.
One of your cases resulted in some of the charges being dropped. How did this come about?
Burton: Three of the ten charges against me were dropped and two of the five against Andrew were.
These related to alleged breaches of orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW). The orders had been made during a closed Children’s Court hearing in May 2017.
The copy of that order provided in evidence against us contained no time and place element. However, these elements are essential for an order to be valid.
I made an application for the transcript from the Children’s Court, as it was essential to our defence, and I also requested copies of all the documents they’d suppressed, as they claimed we released medical information about the child.
This process took about one year, and I had to appeal the matter to the NSW Supreme Court to get all that information. So, I’m saying the DPP deliberately withheld information essential to our defence.
Then, once I had that information, I spoke with a very good friend who is a fruit picker from Griffith. In my opinion, this friend knows more about common law and criminal law than anyone I have ever met.
I was then able to find a rarely used tort, that being collateral abuse.
The DPP was still proceeding with the charges, even when I made them aware that they were doomed to fail. I went on to file a collateral abuse statement of claim against the DPP, whilst the criminal matter was still afoot.
That statement of claim was ultimately struck out in the District Court, so I appealed that matter to the Court of Appeal.
I appeared before three judges and my appeal was upheld, and the matter was sent back to the District Court.
Shortly after this, the DPP dropped the three charges against me and the two against Andrew, as the Court of Appeal had ruled that those orders were invalid.
Once the charges were dropped, I discontinued the collateral abuse claim. I then filed a malicious prosecution against the two senior public officers responsible for maliciously and vexatiously prosecuting both Dr Andrew and myself.
So, as you’ve just explained, the charges being dropped led you to file a malicious prosecution case last week against the NSW DPP and the head of the NSW Department of Communities and Justice.
What are the guts of your claim?
Burton: The guts of our claim are that at the instruction of the then secretary of FACS, the DPP charged us with offences that could never have succeeded against anyone.
This is even when it was made clear to them. They still continued to prosecute knowing full well that the charges could never succeed.
Further to this, we have significant evidence of malicious and vexatious behaviours that in our view require the highest censure by the courts.
You’re also hoping to assemble a jury of four to sit in on your case, which isn’t the usual for a civil trial. Why is a jury necessary?
Katelaris: Given the recent merger of FACS and Justice with Coutts-Trotter as secretary of both, the prospect of a fair hearing of our case would be unlikely, if heard by a judge alone.
The jury system has been described as the palladium of justice – although this only applies to a fully informed jury.
This case is important because it raises the issue that a senior public servant is not protected from legal action against them in a personal capacity, if they have not acted in good faith.
A successful prosecution would serve as a warning and possibly increase the level of proper behaviour of those in senior positions.
And lastly, besides this matter, you still have other cases pending, one involves the criminal charges still laid against you. How do you expect these other matters to play out?
Burton: In regard to the seven charges remaining against me and the three against Dr Andrew, I’m 100 percent confident that they’ll never lawfully succeed.
The reason for this is simple, even without our moral and ethical arguments, our constitutional arguments, or any other defence, the simple fact remains that they can never prove all the elements of the charges against us.
So, even on questions of law alone, they’re ultimately doomed to fail as none of the remaining charges could ever be proved beyond reasonable doubt.
It is my position, that we have not been charged because we have done anything illegal, as we did no more than millions of other people everywhere – including multinational corporations – in saying a child’s name and talking about what we witnessed, along with the general public.
We’ve been charged and subjected to the rigours of the court system to target and make examples of us.
In my case, I was also a victim when the child was removed, and my spontaneous Facebook live cast raised awareness as evidence of what really happens to families every day in NSW at the behest of this appalling department.
We speak the truth about a system in absolute crisis and a government department that sees children as nothing more than financial units.
They care nothing for love, nothing for culture, nothing for spiritual ties, nothing for family, nothing for community, while their motivation is greed and unfortunately, in some instances, other nefarious reasons.
By attempting to criminalise us, they hope to quell an enormous uprising of thousands and thousands of parents who have lost their children without right or justification.
And the department continues to work with the courts to do all they can, not for justice, but to hide their appalling behaviour from the general public.
Katelaris: The hearing of the section 105 charges has been indefinitely staid until our constitutional challenge is resolved.
The constitutional challenge may be delayed by our seeking assurances that the matter will be heard in an open court, whether that be in person or via a podcast system.
Despite our constant agitation to facilitate this challenge at the earliest possible time, the matter has no prospect of being resolved this year.
We’re pleased to be the first individuals charged under this draconian legislation.
The fact that section 105 was drafted and passed into law without serious questioning, calls into doubt the functionality of our current parliament and the morality of the sitting members.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.