HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJROSEANNE BECKETT APPLICANT
AND
THE STATE OF NEW SOUTH WALES RESPONDENT
Beckett v New South Wales
[2013] HCA 17
8 May 2013
S144/2012
ORDER
1.Special leave to appeal granted.
2.The appeal be treated as instituted and heard instanter and allowed with costs.
3.Set aside that part of order (b) of the Court of Appeal of the Supreme Court of New South Wales made on 2 May 2012 dismissing the appeal with costs and, in lieu thereof, order that:
(a) appeal allowed with costs; and
(b)the answer of Davies J to question A of the respondent's notice of motion filed on 16 May 2011 be set aside and, in lieu thereof, question A be answered "No".
4.The respondent pay the appellant's costs of the separate determination before Davies J.
On appeal from the Supreme Court of New South Wales
Representation
G O'L Reynolds SC with S M Nixon and G R Rubagotti for the applicant (instructed by Turner Freeman Lawyers)
B W Walker SC with W G Roser SC and P J Saidi for the respondent (instructed by Crown Solicitor (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Beckett v New South Wales
Torts – Malicious prosecution – Elements – Whether proof of innocence required where proceedings terminated by entry of nolle prosequi – Whether entry of nolle prosequi terminates proceedings in favour of accused – Whether Davis v Gell (1924) 35 CLR 275 should be followed – Whether direction that no further proceedings be taken against person under s 7(2)(b) of Director of Public Prosecutions Act 1986 (NSW) equivalent to termination by entry of nolle prosequi.
Words and phrases – "favourable termination of the prosecution", "malicious prosecution", "nolle prosequi".
Director of Public Prosecutions Act 1986 (NSW), s 7(2).
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ. This appeal is concerned with proof of the tort of malicious prosecution in a case in which the criminal proceeding giving rise to the claim is terminated by a direction from the Director of Public Prosecutions ("the Director") that no further proceedings be taken against the person[1].
[1]Director of Public Prosecutions Act 1986 (NSW), s 7(2)(b).
With one exception, the plaintiff's guilt or innocence of the criminal charge is not an issue in the action for malicious prosecution. The exception, allowed in Commonwealth Life Assurance Society Ltd v Smith[2] on the authority of Davis v Gell[3], requires the plaintiff to prove his or her innocence at the trial of the civil action where the prosecution was terminated by the entry of a nolle prosequi by the Attorney-General ("the Davis exception").
The Attorney-General, or a person acting under the authority of the Attorney-General, may enter a nolle prosequi[4] at…
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- Case
- [2013] HCA 17
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether proof of innocence was a necessary element for a malicious prosecution claim when the proceedings were terminated by a direction that no further proceedings be taken, and whether such a direction was equivalent to the entry of a nolle prosequi. The Court also had to consider whether the precedent set in *Davis v Gell* (1924) 35 CLR 275 should be followed in this context.
The High Court reasoned that a termination of proceedings by a direction that no further action be taken, as occurred in this case under s 7(2)(b) of the *Director of Public Prosecutions Act 1986* (NSW), constitutes a termination in favour of the accused for the purposes of a malicious prosecution claim. The Court held that *Davis v Gell* was correctly decided and that proof of innocence is not required where proceedings are terminated in this manner. Consequently, the Court allowed the appeal, setting aside the orders of the Court of Appeal that had dismissed Mr Beckett's appeal and ordered that question A of the respondent's notice of motion be answered in the negative.
Orders
Orders of the court
1. Special leave to appeal granted.
2. The appeal be treated as instituted and heard instanter and allowed with costs.
3. Set aside that part of order (b) of the Court of Appeal of the Supreme Court of New South Wales made on 2 May 2012 dismissing the appeal with costs and, in lieu thereof, order that:
(a) appeal allowed with costs; and
(b) the answer of Davies J to question A of the respondent's notice of motion filed on 16 May 2011 be set aside and, in lieu thereof, question A be answered "No".
4. The respondent pay the appellant's costs of the separate determination before Davies J.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ, GAGELER J
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