Davis v Gell

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.