A v New South Wales

[2007] HCA 10

HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

A  APPELLANT

AND

STATE OF NEW SOUTH WALES & ANOR   RESPONDENTS

A v State of New South Wales
[2007] HCA 10
21 March 2007
S59/2006

ORDER

1.        Appeal allowed in part;

2.Vary paragraph 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 September 2005 by adding the words "with costs" after "dismissed";

3.Set aside paragraphs 2 to 7 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 September 2005 and, in their place, order that the cross-appeal be dismissed with costs; and

4.The respondents to pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation

D F Jackson QC with A P Stenmark SC and J C Sheller for the appellant (instructed by Greg Walsh & Co)

M G Sexton SC, Solicitor-General for the State of New South Wales with P J Saidi and J C Chapman for the first and second respondents (instructed by Crown Solicitor for New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

A v State of New South Wales

Torts – Malicious prosecution – Whether prosecutor acted without reasonable and probable cause – Public rather than private prosecution – Applicant acquitted of offence charged – Prosecutor had no personal knowledge of the facts underlying the charge – Whether prosecutor did not honestly form the view that there was a proper case for prosecution or whether the prosecutor formed that view on an insufficient basis.

Torts – Malicious prosecution – Whether prosecutor acted maliciously – Whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law.

Words and phrases – "malicious prosecution", "malice", "absence of reasonable and probable cause".

1. GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ.   This appeal raises issues concerning two of the four elements of the tort of malicious prosecution.  For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

   (1)that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

   (2)that the proceedings terminated in favour of the plaintiff;

   (3)that the defendant, in initiating or maintaining the proceedings acted maliciously; and

   (4)that the defendant acted without reasonable and probable cause[1].

   [1]Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) at 350-356.

2. At a jury trial, the third of those issues is for the jury; the fourth is for the judge, although it may be necessary for the judge to obtain the decision of the jury upon a disputed matter of fact relevant to the issue.  Many of the decided cases have involved argument as to the circumstances in…