Beckett v The State of New South Wales

The appellant, Beckett, brought proceedings against the State of New South Wales concerning a prior criminal prosecution. The dispute centred on whether the appellant could succeed in a claim for malicious prosecution, particularly in light of the status of the indictment that had been presented against him. The matter came before the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several key legal issues. These included whether the onus lay on the appellant to prove his innocence in the context of the malicious prosecution claim, whether the indictment against him was considered "spent" or "extant" at the relevant time, and whether the Director of Public Prosecutions' exercise of statutory power under s 7(2)(b) of the *Director of Public Prosecutions Act 1986* (NSW) constituted the entry of a *nolle prosequi*. Furthermore, the Court had to consider whether it was bound by the High Court's decision in *Davis v Gell* (1924) 35 CLR 275.

In its reasoning, the Court of Appeal addressed the onus of proof in malicious prosecution, clarifying that it is not necessary for a plaintiff to prove their innocence, but rather to prove the absence of reasonable and probable cause and malice. The Court analysed the meaning of "spent" and "extant" indictments in the context of the appellant's situation and concluded that the DPP's action did not amount to a *nolle prosequi* in the traditional sense, but rather a statutory discontinuance. The Court also considered its obligation to follow High Court precedent, ultimately finding that *Davis v Gell* did not preclude the appellant's claim in the circumstances.

The Court of Appeal granted the appellant leave to appeal and the respondent leave to cross-appeal. However, both the appeal and the cross-appeal were dismissed, with costs awarded to the respondent.