Beckett v New South Wales

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ

ROSEANNE 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).

1. 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).

2. 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"). 

   [2](1938) 59 CLR 527; [1938] HCA 2.

   [3](1924) 35 CLR 275; [1924] HCA 56.

3. The Attorney-General, or a person acting under the authority of the Attorney-General, may enter a nolle prosequi[4] at…