ON APPEAL FROM THE SUPREME COURT OF Malicious Prosecution-Essentials of action-Innocence of plaintiff-Termination of
criminal proceedings in favour of plaintiff-Acquittal_Nolle prosequi---New trial.
Held, by Isaacs A.C.J., Gavan Duffy and Starke JJ., that in an action for malicious prosecution the plaintiff must prove his innocence, but the fact that on his trial a nolle prosequi was entered, although it establishes that the proceedings terminated in his favour, does not establish his innocence.
Held, also, by Isaacs A.C.J. and Starke J., that in such an action a verdict of acquittal establishes the innocence of the plaintiff as well as that the proceedings terminated in his favour.
The plaintiff in an action for malicious prosecution had been prosecuted on a charge of maliciously killing certain animals belonging to the defendant, who informed the police that the animals had been poisoned by eating maize from
maize crib in his paddock and that he had seen the plaintiff under suspicious circumstances in the paddock near the crib the night before the poisoning. On the plaintiff pleading not guilty a nolle prosequi had been entered. At the trial of the action the jury were directed that they should assume that the plaintiff was innocent because the criminal proceedings had ended in his favour, and they found a verdict for the plaintiff.
Held, that a new trial should be had as the wrong direction might, in the circumstances, have led to a miscarriage of justice.
Decision of the Supreme Court of Victoria (Full Court): Gell v. Davis, (1924) V.L.R 315; 45 A.L.T. 161, reversed.
An action was heard in the County Court at Sale by his Honor Judge Woinarski and a jury by which Clarence Norman Gell sought to recover from William Henry Davis £499 damages for malicious prosecution. It appeared from the evidence that the defendant had given certain information to the police, who thereupon charged the plaintiff upon information with unlawfully and maliciously killing twenty-two pigs, one cow and twenty fowls of the defendant that the plaintiff was committed for trial, and that on his trial after he had pleaded not guilty the Crown Prosecutor entered a nolle prosequi. The jury found a verdict for the plaintiff for £380. The defendant by summons applied to the learned Judge for a new trial on the ground (so far as material) that he had misdirected the jury in directing them that they should, for the purposes of the action, assume that the plaintiff was innocent of the charge which had been made against him. The application having been dismissed, the defendant appealed to the Full Court of the Supreme Court, which held that there had been a misdirection but that in the circumstances no substantial wrong or miscarriage of justice was occasioned by it: Gell v. Davis 1.
From that decision the defendant now appealed to the High Court. Other material facts are stated in the judgments hereunder. Latham K.C. (with…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Davis v Gell [1924] HCA 56
Case
[1924] HCA 56
Decision Date
CaseChat Overview and Summary
The case of *Davis v Gell* involved an appeal to the High Court of Australia from the Supreme Court of Victoria. The plaintiff, Gell, had sued the defendant, Davis, for malicious prosecution after being charged with maliciously killing animals. The criminal proceedings against Gell had terminated in his favour when a *nolle prosequi* was entered by the Crown Prosecutor after Gell had pleaded not guilty. The jury in the civil action found a verdict for Gell, but Davis sought a new trial on the grounds of misdirection, arguing that the trial judge had wrongly instructed the jury to assume Gell's innocence.
The central legal issue before the High Court was whether, in an action for malicious prosecution, a plaintiff must prove their own innocence, and what evidentiary weight, if any, should be given to the termination of criminal proceedings in their favour, particularly when that termination is a *nolle prosequi* rather than an acquittal. The court was required to determine if the trial judge's direction to assume the plaintiff's innocence constituted a misdirection that might have led to a miscarriage of justice.
The High Court, comprising Isaacs A.C.J., Gavan Duffy and Starke JJ., held that in an action for malicious prosecution, the plaintiff must prove their innocence. They further clarified that while a *nolle prosequi* establishes that the criminal proceedings terminated in the plaintiff's favour, it does not, in itself, establish the plaintiff's innocence. However, a verdict of acquittal in the criminal proceedings does establish both the termination in favour of the plaintiff and their innocence. Isaacs A.C.J. and Starke J. specifically noted that the termination of proceedings by a *nolle prosequi* does not operate as an acquittal and therefore does not, on its own, prove innocence.
Consequently, the High Court found that the trial judge's direction to assume the plaintiff's innocence was a misdirection. Given the circumstances, particularly the potential impact of this assumption on the jury's assessment of the evidence and damages, the Court concluded that a new trial was necessary to avoid a miscarriage of justice. The decision of the Supreme Court of Victoria, which had found no substantial miscarriage of justice, was reversed.