A v State of NSW & Ors; Foros v A; State of NSW v A [2005] NSWCA 292

In this matter, Greg Walsh represented A in respect of proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the State of New South Wales and a police officer. The District Court had found for the plaintiff in respect of his claim for malicious prosecution, however the remainder of the plaintiff’s claims were dismissed.

In determining whether the respondents had acted without reasonable and probably cause in laying the charges, the trial Judge applied the test stated by Jordan CJ and Mitchell v John Hine and Son Ltd [1978] 38 SRNSW 466. The Court per Beazley JA (Mason, Pearlman AJA agreeing) held that:

i. To succeed in action for malicious prosecution, the accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause; Sharp v Biggs (1932) 48 CLR 1;

ii. A prosecutor will act without reasonable and probably cause where an accused can show that a prosecutor lacked an honest and reasonable belief that the laying of a charge against an accused was justified. Sharp v Biggs (1932) 48 CLR 81; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (approved); Mitchell v John Hine & Son Ltd (1938) 38 SR (NSW) 466 not followed.

iii. A prosecutor will “honestly and reasonably believe” that the laying of a charge is justified where upon the material available to the prosecutor forms a genuine belief that upon general grounds of justice a charge against the accused is warranted; and where the evidence would lead a person of ordinary caution and prudence to conclude that the laying of the charge was warranted; Sharp v Biggs (1932) 48 CLR 81;

iv. A prosecutor need not believe that the accused was guilty of the offence charged in the sense than an accused will be convicted. It is sufficient that a prosecutor honesty and reasonably believed that upon the available evidence, there was a proper case to lay before the Court; Sharp v Biggs (1932) 48 CLR 81

v. It is not appropriate for a prosecutor to rely upon irrelevant or inadmissible material, unless there is some proper purpose in doing so, for example, to assist in an assessment of the credibility of other material.

vi. Although much of the material considered by the second respondent was inconsistent and inadmissible, there was sufficient material in his possession such that a reasonable and prudent person would consider that the charges were warranted.

vii. Although there was pressure on the second respondent from his superiors it was pressure to lay the charge if there was a “prima facie” case.

viii. The second respondent believed, on the material he considered that the charges were warranted.

ix. Malice will be proved where an accused can show that, in laying a charge, a prosecutor was actuated by either spite or ill-will towards the accused or improper motives, namely motives other than a desire to bring the accused to justice. Hicks v Faulkner (1878) 8 QB 167; Trobridge v Hardy (1955) 94 CLR 147; Glinski v McIver [1962] AC 726;

x. An improper motive in charging an accused with an offence, such as succumbing to pressure from bureaucratic superiors to lay a charge may, in some cases, support a finding of malice. In this case, however, the pressure was to lay a charge if there was a “prima facie” case.

A has sought leave to appeal to the High Court of Australia.