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Hrdavec v State of New South Wales [2022] NSWCA 52

Author:  Tom Hunter-Leahy

*Trigger warning: This case note contains some references to subject matter and material that may be traumatising or upsetting for survivors of sexual assault and rape, as well as their families. Reader discretion is advised.

If reading this article is upsetting, or causes you emotional distress, and you would like some support and counselling, we encourage you to reach out to one of the leading support services listed below:

Beyond Blue https://www.beyondblue.org.au/  1300 224 636
Lifeline https://www.lifeline.org.au/  13 11 14

The following case note provides further guidance in relation to damages claims for malicious prosecution.

In 2015, a young Sydney woman survived a shocking gang rape at a backyard party and reported her ordeal to NSW Police. The police investigated the matter and charged four men with multiple crimes, including aggravated sexual assault and aggravated indecent assault.

One of the men charged, Mr Hrdavec, was taken into custody, refused bail and held on remand for a period of roughly 30 days. He was then released on bail and, ultimately, all charges against him were withdrawn by police and the matter was dismissed.

In 2016, Mr Hrdavec commenced court proceedings in the Supreme Court of NSW, claiming damages for wrongful arrest, false imprisonment and malicious prosecution.
Mr Hrdavec was unsuccessful in establishing wrongful arrest, false imprisonment or malicious prosecution and his matter was dismissed with costs awarded to the State.
He then appealed that decision claiming that Justice Walton SCJ had erred in reaching that decision and leave was granted by the NSW Court of Appeal to review the following issues, in particular:

  1. Whether the police officer who laid the charges suspected on reasonable grounds that the defendant had committed an offence;
  2. Whether the police officer had maliciously misrepresented to the defendant statements given by witnesses to the gang rape;
  3. Whether the police officer had a reasonable and probable cause to charge the defendant; and
  4. Whether the police officer maliciously maintained the prosecution of the defendant after further evidence came to light increasing the likelihood that he would be acquitted of all charges.

Summary of findings in the Court of Appeal:

  1. The first issue needs to be assessed (i) from the perspective of a ‘reasonable person’ put in the place of the police officer in question (objective analysis), and (ii) from the point of view of the police officer in question (subjective analysis).
    A police officer must show some factual basis that is acceptable to a reasonable person as providing support for their suspicion that there were reasonable grounds that the accused committed a criminal offence (per George v Rockett (1990) 170 CLR 104).
    Having regard to the above, the Court of Appeal held that there was ample evidence to base a suspicion (as opposed to a belief) that the plaintiff was involved in the sexual assaults at the time of charging.
  2. In relation to the second issue, the Court of Appeal determined that the police officer had made an honest mistake in stating that a witness did not mention Mr Hrdavec.
    The Court inferred that due to the witness’ lack of useful detail in her statement, and the police officer’s decision to re-interview that witness, the police officer’s misrepresentations of evidence were clearly not deliberate (Fox v Percy (2003) 214 CLR 118). The threshold for malice goes far beyond that of honest mistake which is why this issue resolved in favour of the police officer.
  3. The third issue concerned whether the police officer had reasonable and probable cause for laying the charges. The Court of Appeal found that – although some of the statements which the police officer relied upon were later shown to be untrue – at the time of charging, the police officer genuinely believed them.
    Therefore, Mr Hrdavec was unable to establish that the police officer did not have reasonable or probable cause to prosecute with the knowledge available to him at the material times.
    The Court distinguished that, while it did not endorse the police officer’s mistake, the conduct did not amount to a deliberate deceit.
  4. The fourth issue was to determine whether the police officer had maliciously maintained the prosecution after obtaining further evidence which arguably should have resulted in the charges being dropped.
    The Court of Appeal found that, each time new evidence came to light, the police officer was open to determine and vary the weight given to each piece of evidence.
    Even after the victim withdrew her allegations against Mr Hrdavec, it was still open to the police officer to maintain the prosecution.
    The court valued the fact that, in his experience with working with sexual assault victims, the police officer noted that victims commonly change their evidence. Ultimately, the Court of Appeal found that the police officer was at no time malicious in his maintenance of the prosecution, as it was reasonably open to him to withdraw or maintain the charges.

As this case demonstrates and reaffirms, it is important to remember that not all failed or terminated prosecutions will amount to malicious prosecutions. There is a very high threshold in these matters with respect to establishing the crucial element of malice.

Mere negligence, stupidity or mistake will not be enough for a court to find that a police officer has acted maliciously. The element of malice requires a plaintiff to prove that the police officer/prosecutor intended to do harm. It is necessary to show that the prosecutor was motivated by some other motive.

Such motives may include:

  1. Spite and ill will;
  2. Pressure to bring about a conviction;
  3. An irrational obsession with the guilt of the accused;
  4. To silence the plaintiff in another case; and
  5. To punish the accused for evidence given against police in another case.

In the present case, no such motives were established by the plaintiff, leaving it open to the courts to determine that the police officer/prosecutor had a genuine belief in their suspicion of, and maintenance of criminal proceedings against, Mr Hrdavec.

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