State of New South Wales v Spedding

The case of *State of New South Wales v Spedding* was heard in the Court of Appeal of New South Wales, with Bell CJ, Ward P, and Adamson JA presiding. The dispute concerned claims of malicious prosecution, collateral abuse of process, and misfeasance in public office brought by the respondent, Mr Spedding, against the State of New South Wales. The core of the claims related to the institution and maintenance of criminal proceedings against Mr Spedding, which he alleged were commenced for improper purposes, including advancing a police investigation into unrelated matters and failing to adequately consider exculpatory material.

The Court of Appeal was required to determine several key legal issues. These included whether police officers could be considered prosecutors for the tort of malicious prosecution after the Director of Public Prosecutions (DPP) had taken over the carriage of proceedings, and whether police officers had maintained the prosecution in such circumstances. The court also had to consider whether an absence of reasonable and probable cause could be established where proceedings were commenced with the dominant purpose of advancing an unrelated police investigation, and where basic investigative tasks remained incomplete and exculpatory material was available but not reviewed. Furthermore, the court examined what constitutes malice in this context, particularly whether an improper purpose by the police, not disclosed to the DPP, could establish malice on the part of the DPP, and whether the tort of collateral abuse of process could be committed by a police officer not formally listed as a prosecutor. Finally, the court considered whether the maintenance of criminal proceedings constituted an exercise of public power for the tort of misfeasance in public office, and how to distinguish damage to reputation caused by the alleged malicious prosecution from damage caused by the leaking of the respondent's name as a suspect in an unrelated investigation.

The Court of Appeal reasoned that the tort of malicious prosecution could extend to police officers even after the DPP assumed carriage of proceedings, provided they continued to maintain the prosecution. The court held that an absence of reasonable and probable cause could be demonstrated by evidence that proceedings were instituted for an improper purpose, such as advancing an unrelated investigation, and that fundamental investigative steps, including the review of exculpatory material, had not been taken. The court found that malice could be inferred from such an improper purpose, even if the police's ulterior motive was not disclosed to the DPP. The court also determined that the tort of collateral abuse of process could be committed by police officers acting in their investigative capacity, and that the State could be vicariously liable for their actions. The court further concluded that the maintenance of criminal proceedings could constitute an exercise of public power for the purposes of misfeasance in public office. The court drew a distinction between damage to reputation caused by the institution of proceedings and damage caused by the disclosure of the respondent's status as a suspect in an unrelated matter.

The appeal was dismissed, and the State of New South Wales was ordered to pay the costs of the appeal.