Case Review (Malicious Prosecution): Irving v Pfingst (No 2)

PLAINTIFF: Terry Irving, charged in 1993.

INJURY: Psychiatric injury and emotional distress from 7 days wrongful imprisonment plus forcible DNA sampling

ISSUE: A detective charged Irving with being an "accessory" to a robbery, then 7 days later charged him with being the actual robber. Irving could not have been both. Twenty-six years later, including 12 years of not bothering to to progress his claim, what damages is he entitled to for those 7 days wrongly in jail?

BACKGROUND:

In May 1993, Detective Helen Pfingst charged Terry Irving with:

• 18 May: Being an accessory after the fact to robbery (helping someone named "Wayne Suthers"after he robbed a bank)
• 25 May: Armed robbery itself (being the actual robber)

The Court of Appeal found Pfingst knew these charges were mutually exclusive. She had no evidence against "Suthers"and actually suspected Irving was the robber all along. She laid the Accessory Charge as a holding mechanism - to keep Irving in custody while she investigated him for the robbery.

Irving was convicted of the robbery and spent years in prison before his conviction was overturned by the High Court. The Accessory Charge was withdrawn on 2 July 1993.

Irving spent 7 days in Cairns Watchhouse on the Accessory Charge. Conditions were appalling: 70 people in one cell, not enough beds, one shower, toilet in corner with no privacy, violence and food fights.

While in custody, Pfingst:

• Opposed bail twice (on a charge she knew was baseless)
• Got a court order to forcibly take DNA samples
• Police told Irving they "could use as much force as necessary"

The 26-Year Legal Battle:

• 1999: Irving sued for malicious prosecution of both charges
• 2020: Lost at trial - judge found no malicious prosecution
• 2021: Won on appeal (for Accessory Charge only - majority 2:1)
• 2025: This damages assessment

Why Did It Take 21 Years to Get to Trial?

Here's where Irving seriously hurt himself:

1999-2004 (5 years): Irving filed his claim but then did essentially nothing for years. By January 2004, the State applied to strike out his claim for want of prosecution (use it or lose it).

2004-2011 (7 more years): Irving spent these years chasing an ex gratia payment from various Attorneys-General instead of prosecuting his case. The Attorney-General rejected his claim in May 2006, but Irving kept trying through different AGs until December 2009 when he was finally told: pursue it through court, no ex gratia payment coming. The claim sat essentially dormant.

2011 onwards: A 'no win no fee' personal injury law firm took over in January 2011 and things finally started moving. But the damage was done.

The Judge's View: "The plaintiff unreasonably delayed the prosecution of these proceedings up until September 2011."The court rejected Irving's excuses:

• "I was trying to settle" - You can't let litigation sit idle for years hoping for ex gratia payment
• "I couldn't afford it" - Poverty alone doesn't excuse failing to prosecute
• "They didn't give full disclosure"- Doesn't explain the massive gaps where nothing happened

The Damages Fight

Irving Claimed $960,000 total, comprised of:

• $460,000 general damages
• $300,000 aggravated damages
• $200,000 exemplary damages
• Interest from 1993
• He argued 30 years fighting for vindication should be fully compensated

The State of Queensland Offered $50,000 total, on the basis that:

• Only 7 days wrongfully detained
• Most suffering related to Robbery Charge (which wasn't malicious prosecution)

COURT AWARD: The court awarded $130,000 to the plaintiff comprised of:

• General Damages: $65,000
• • 7 days deprivation of liberty in degrading conditions
  • Psychiatric injury (depression, anxiety, stress)
  • Humiliation and violation
• Aggravated Damages: $45,000
• • Forcible DNA sampling while in custody
  • Pfingst opposed bail knowing charge was false
  • 30 years with no apology from Pfingst or the State
  • Continued denial of wrongdoing at trial
  • Abuse of police power
• Exemplary Damages: $20,000
• • Punishment for using Accessory Charge as holding mechanism
  • Deterring similar police conduct
  • Abuse of office
• Interest: Heavily Reduced
• • Court found Irving unreasonably delayed proceedings from 1999 to 2011 (doing nothing for years, seeking ex gratia payments). Interest awarded only from September 2011, not 1993 - costing him 12 years of interest payments.
• Costs: 40% Only
• • Irving sued for two malicious prosecutions but won only one. The losing claim dominated the trial. He recovered only 40% of costs.

After 26 years of fighting, Irving got about $15,700 per day of wrongful detention plus interest from 2011, plus 40% of costs. His own 12-year delay cost him roughly $40,000 in interest and showed that even if you win your case, delay kills damages.

KEY PRINCIPLES:

1. Prosecute your claim or pay the price. Irving's 12-year delay cost him ~$40,000 in interest. You can't leave litigation dormant while pursuing other remedies.
2. Causation is everything. Irving only got damages for the 7 days on the Accessory Charge, not the years on the Robbery Charge (which wasn't malicious prosecution).
3. No apology = more damages. The State's 30-year refusal to acknowledge wrongdoing significantly increased aggravated damages.
4. Partial success = proportionate costs. Win one of two claims, get less than half your costs.
5. Police holding charges warrant serious damages. Using one charge to keep someone detained while investigating another is serious abuse warranting exemplary damages.

CASE: Irving v Pfingst (No 2) [2025] QSC 224

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