GORDON Wood and the State of New South Wales

The applicant, Gordon Wood, sought special leave to appeal to the High Court of Australia against decisions of the courts below concerning his claim for malicious prosecution. The dispute centred on whether the prosecutor, Mr Tedeschi, acted with malice. Wood's case was that Tedeschi lacked reasonable and probable cause for initiating and maintaining the prosecution, and that Tedeschi knew of significant flaws in the Crown's case and of his own misconduct.

The legal issues before the High Court involved determining whether the lower courts erred in their findings regarding Tedeschi's knowledge of evidential defects and his own misconduct, and whether these errors led to an incorrect assessment of malice. Specifically, the applicant argued that the trial judge failed to adequately address the issue of Tedeschi's knowledge of his own acts of misconduct and that the judge misapplied the legal test for subjective absence of reasonable and probable cause by requiring knowledge at both the initiation and maintenance stages of the prosecution. Furthermore, the applicant contended that the judge applied an erroneously high standard in assessing whether malice could be inferred, effectively requiring proof of perjury rather than a broader assessment of the evidence.

The applicant's submissions argued that the trial judge's findings were fatally flawed due to a failure to consider all relevant evidence and apply the correct legal principles. It was submitted that the judge did not properly assess Tedeschi's knowledge of his own misconduct, nor did she correctly apply the test for subjective absence of reasonable and probable cause, which requires consideration of knowledge at either the initiation or maintenance of proceedings, not necessarily both. Regarding malice, the applicant argued that the judge imposed an unduly stringent test, requiring a finding of deliberate dishonesty or evidence being wholly untenable, rather than a holistic assessment of the primary facts from which malice could be inferred. The applicant contended that the Court of Appeal failed to address these critical errors.