Precedent (Australian Lawyers Alliance)
TO SUE OR NOT TO SUE?
By Dyson Hore-Lacy SC
In the area of police misconduct I am asked about the advisability of suing for malicious prosecution more than any other tort, usually at the request of a still angry person who has been found not guilty by a judge or jury of a criminal charge or charges. For reasons which I hope will become clear later in this article, my advice is usually guarded. History and experience have shown that choosing such a course involves a high risk of failure.
ELEMENTS NECESSARY TO PROVE
There have been a number of recent cases dealing with the elements which are necessary to prove in order to sustain an action for malicious prosecution. Particularly relevant are two High Court cases: Beckett v New South Wales and A v New South Wales.
The majority judgment in Beckett v New South Wales sets out the elements to be proved:
‘In summary the plaintiff must prove four things:
• The prosecution was initiated by the defendant;
• The prosecution terminated favourably to the plaintiff;
• The defendant acted with malice in bringing or maintaining the prosecution; and
• The prosecution was brought or maintained without reasonable and probable cause.’
It is important to note the words ‘or maintaining the prosecution’. A prosecution may be justifiably commenced but, if at some time before verdict, a prosecutor becomes aware of the plaintiff’s innocence, for example, and continues the prosecution, he or she can still be liable.
Other cases have added another element:
• proof that the plaintiff has suffered some damage.
In Slaveski v State of Victoria and Ors, Kyrou J defined damage as damage being caused to the plaintiff’s reputation, person or property.
I discuss these elements below.
‘THE PROSECUTION WAS INITIATED BY THE DEFENDANT’
What constitutes a prosecution?
In the Victorian Court of Appeal case of Mutton v Baker, Whelan and Santamaria JJA referred with approval to what was said by the Privy Council in the case of Amin v Bannerjee:
‘The action for damages for malicious prosecution is part of the common law of England... The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and is designed to discourage the perversion of the machinery of justice for an improper purpose.’
A prosecutor therefore does not have to commence an action; it is sufficient if he or she wrongfully sets the law in motion.
The action is not confined to criminal proceedings. Whelan and Santamaria JJA, quoting Salmond and Heuston on the Law of Torts, described the chief classes of proceedings to which this tort applied:
• malicious criminal prosecutions;
• malicious bankruptcy and liquidation proceedings;
• malicious arrest;
• malicious execution against property;
• malicious civil proceedings; and
• abuse of process of the court.
Actively instrumental in setting the law in motion or wrongfully setting the law in motion
Not only can a person who initiated a prosecution be sued, but anyone who aided and abetted the prosecution or is a party to bringing or maintaining the prosecution, can be liable. A common example is a police corroborator who knowingly gives false evidence in support of an informant.
In Skrijel v Mengler, Nettle J, in dealing with what it means to be actively instrumental in setting the law in motion, adopted the summary in Fleming:
‘The defendant must have been “actively instrumental” in setting the law in motion. Merely supplying information, however incriminating, to the police on which they eventually decide to prosecute is not the equivalent of launching a prosecution; the critical decision not being his, (the stone set rolling) is simply a matter of suspicion. These days one should hesitate to credit an informant with having overcome the scepticism of a police trained to test the reliability of complainants. On the other hand, an informant may be regarded as a prosecutor if his information virtually compels the police to prosecute, even more when he deliberately deceives the police by supplying false information without which they would not have proceeded.’
Nettle J stated that:
‘according to the same authorities, being “actively instrumental” means either instituting or continuing the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding as to be regarded as really taking the action through them’.
Nettle J referred to what Lord Keith stated in Martin v Watson:
‘where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgement, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.’
ABSENCE OF ‘REASONABLE AND PROBABLE CAUSE’
In Slaveski v State of Victoria and Ors, Kyrou J stated that:
‘This element [the need to prove absence of reasonable and probable cause] directs attention to the state of affairs which existed when the defendant initiated, instigated or continued the prosecution. In particular it directs attention to the material that was then available for the defendant’s consideration, rather than to any material that emerged only after that time.’
There is a subjective and objective aspect to this element. In A v New South Wales, Gleeson CJ, Gummow, Kirby, Hayne, Hayden and Crennan JJ wrote:
‘To decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.’
‘THE PROSECUTION TERMINATED FAVOURABLY TO THE PLAINTIFF’
This aspect usually arises where a person has been found not guilty of a criminal offence by judge or jury or has been discharged at committal.
The position of a plaintiff where a nolle prosequi has been entered was considered by the High Court in Beckett v NSW.
An excerpt from Salmond’s Law of Torts, 6th edition (1924) at p595 was cited with approval:
‘What the plaintiff requires for his action is not a judicial determination of his innocence but merely the absence of any judicial determination of his guilt.’
The High Court held that in the case of a nolle prosequi being entered, there was no need for the plaintiff to prove his innocence. In a separate and supporting judgment, Gageler J stated that:
‘The termination of prosecution proceedings by entry of a nolle prosequi should be held to be sufficient to establish the element of the cause of action in malicious prosecution that requires prosecution proceedings to be terminated in the plaintiff’s favour.’
‘THE DEFENDANT ACTED WITH MALICE IN BRINGING OR MAINTAINING THE PROSECUTION’
In A v State of NSW, the High Court stated:
‘to constitute malice the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique” motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor.’
Further, the High Court stated that:
‘Where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice.
In the case of a private prosecution, it may be easier to prove that a prosecutor was acting for a purpose other than the purpose of carrying the law into effect than in a case of a prosecution instituted in a bureaucratic setting where the prosecutor’s decision is subject to layers of scrutiny and to potential review.’
‘... Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. It is an element that focuses on the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.’
The question arises as to whether a plaintiff needs to identify a motive for the bringing or maintaining of the prosecution or whether it is permissible if an inference can be drawn that some unknown malicious motive was instrumental in bringing or maintaining the prosecution (that is, a precise motive need not be identified).
In Moulton v Chief Constable of the West Midlands, the English Court of Appeal decided that:
‘If the court holds that there was no honest belief in the validity of the prosecution, the court may well be ready to infer that the prosecutor has proceeded from some motive other than a legitimate desire to bring the accused to justice.’
The difficulties of succeeding in an action for malicious prosecution against a police informant were demonstrated in the Victorian Court of Appeal case of Chapman v Cole. The facts were not canvassed by the Court of Appeal in Chapman’s case, as the appeal was solely based on the direction to the jury by the learned trial judge. The jury in Chapman’s case answered ‘no’ to the two questions: (1) Did the respondent institute, or continue prosecuting, charges against the appellant without any honest belief that the prosecution was justified? And (2), in instituting, or continuing to prosecute the charges against the appellant, was the respondent actuated by malice?
The facts in that case were that the plaintiff was charged with making a number of threatening phone calls from identified public telephone booths in Melbourne. He was a truck driver and produced conclusive documentary evidence that for at least a number of these phone calls he was delivering goods about 200 kilometres from Melbourne. There was other evidence, although not conclusive, which pointed strongly to the fact that he could not have made a number of other calls. The prosecution was based solely on the evidence of a witness who knew the plaintiff who claimed that he recognised the plaintiff’s voice on the phone. The witness was adamant that it was the plaintiff’s voice. The plaintiff’s solicitor provided the prosecutor with the exculpatory documentary material before the Magistrate’s court hearing commenced. Despite this, the prosecution of the plaintiff was continued. The plaintiff was actually found guilty by the Magistrate but won on appeal. There was no identifiable motive for the informant to bring the charges against the plaintiff.
This case shows the difficulty of proving malicious prosecution when a motive cannot be proven or inferred.
Cases where a motive can be readily inferred have proved not so difficult. The most common example is where a person is charged with an offence such as assaulting police or resisting arrest in order to justify an arrest by the informant. If a court is satisfied that there was no resist or assault of police, and that the police evidence was a concoction, then malice and absence of reasonable or probable cause will be readily inferred.
An example of this type of situation was the subject of consideration in the case of Houda v NSW. In that case a solicitor, Mr Adam Houda, attended the Burwood Local Court where he interviewed a client. He was approached by the defendant and after verbal exchanges was arrested and charged with assaulting a police officer in the execution of his duty. Cooper AJ found that the plaintiff did not assault police.
Another common example is where a plaintiff has sustained provable and demonstrable injuries while in police custody. In order to explain the injuries, an informant may falsely claim that he was assaulted by the plaintiff and struck the plaintiff in self-defence. Again, if the court does not accept that the plaintiff assaulted the informant, and the allegations were a fabrication, the necessary inference may be readily drawn.
DAMAGES: WHAT GUIDANCE DO WE GET FROM PREVIOUS CASES?
The answer to this question is: ‘very little’. Unlike other more commonly litigated torts – for example, negligence or other breaches of duty – there is no accepted range of damages in the Commonwealth or the states or territories, established as a matter of practice.
Compensatory, aggravated and exemplary damages
Compensatory, aggravated and exemplary damages may be awarded for malicious prosecution.
The authorities dealing with what must be established to be entitled to aggravated and exemplary damages are well known and will not be repeated here. Aggravated damages, especially, are commonly awarded to increase compensatory damages in malicious prosecution cases.
No real guidance as to a range of damages which may be awarded can be gleaned from reported cases, as successful actions in Australia are sparse and amounts awarded can vary significantly, depending on the circumstances of each case.
Cases which can give some insight into judicial reasoning behind awards for damages in malicious prosecution actions include: Houda v NSW, Vivoda v Kealy & Ors, State of New South Wales v Abed, Moses v State of New South Wales (No. 3), Nye v State of New South Wales & Ors, Landini v State of New South Wales & Ors, Lee v Kennedy & Ors, and Adams v Kennedy & Ors.
In some of these cases there is an overlap of malicious prosecution and other torts, such as false imprisonment, where there is some merging of damages between the torts. In such cases it is often difficult to isolate and attach an amount of damages to one single tort.
Cases such as Beckett v New South Wales and A v State of New South Wales comprehensively deal with the principles pertaining to malicious prosecution. There is also a plethora of cases dealing with aggravated and exemplary damages which is easily accessible.
A number of observations may be made, which are largely based upon the experience of the writer in malicious prosecution cases over many years.
1) Without direct evidence of malice, or evidence that will allow a strong inference of malice to be drawn, malicious prosecution actions are difficult to succeed in.
2) An exception to this is where the action is joined with other torts, such as false arrest or assault, where the allegation is that the charges were brought against the plaintiff to justify an otherwise unlawful arrest or to explain otherwise unexplainable injuries suffered by the plaintiff.
3) If the evidence supporting other torts, such as the ones mentioned above, is sound, there may not be a great deal to be gained by attaching an action for malicious prosecution to the other torts. This should save a significant amount of time and expense as malicious prosecution actions usually require an exhaustive examination of the reasons for prosecuting and the evidence available for the prosecution. I cannot see why it could not be argued that the bringing of an unjustified prosecution could not amount to a significant aggravation of the damages relating to other torts. Although the damages would not be as high as damages awarded for malicious prosecution, there should be something allowed, and the difficulties to be overcome would be significantly reduced.
4) It is difficult to get real assistance from reported cases concerning quantum. As mentioned above, various torts often overlap. Perhaps the best approach is to involve intuitive synthesis to the facts considered as a composite event.
Dyson Hore-Lacy SC took silk in 1995. He has appeared extensively for Aboriginal people in Northern Territory and Western Australia. In recent years, he has practised mainly in criminal law, personal injury cases, coronial inquests including a number of police shootings, and some commercial. He practises in appellate jurisdictions in both civil and criminal jurisdictions. EMAIL firstname.lastname@example.org.
  HCA 17; (2013) 297 ALR 206.
 (2007) 233 ALR 584.
 Beckett v New South Wales, see note 1, at .
  VSC 441.
  VSCA 43.
  AC 322.
 Ibid, 330.
 Mutton v Baker, see note 5, at .
  VSC 270.
 Ibid .
 Ibid .
  1 AC 74.
Slaveski v State of Victoria and Ors, see note 4, at .
 A v New South Wales, see note 2, at .
Beckett v New South Wales, see note 1, at .
A v New South Wales, see note 2, at .
Ibid at -.
 Ibid at .
 (2010) EWCA Civ 524.
 Ibid .
 VSCA 70; (2006) 15 VR 150.
  NSWSC 1053.
  VCC 130.
  NSWCA 419.
  NSWDC 243.
  NSWSC 1212.
  NSWSC 1280.
  NSWCA 153.
  NSWCA 152.