In this information sheet we explain all about malicious prosecution, what is reasonable and probable cause, what is malice and who can be liable.
When the police prosecute a person, there must exist reasonable grounds for doing so. If the police commence criminal proceedings against an accused in order to deliberately cause harm, this is known as ‘malicious prosecution’. A person who has been subject to spiteful and deliberate prosecution may be able to pursue civil remedies for compensation.
In NSW, in order to sustain a claim for malicious prosecution, you must be able to prove five things:
1. That criminal proceedings were initiated by the NSW Police Force against you;
2. The abovementioned proceedings were unsuccessful (i.e. you were discharged or found not guilty);
3. The NSW Police Force did not have ‘reasonable and probable cause’ to bring, or maintain, the criminal proceedings;
4. The criminal proceedings were motivated by malice; and
5. You suffered loss and damage as a result of the malicious prosecution.
The third and fourth elements are generally the most difficult to prove.
Initially, it may be that prosecuting the accused was justifiable. However, if further information and/or evidence comes to light which is favourable to the accused innocence, the criminal proceedings ought not be continued.
The absence of ‘reasonable and probable cause’ can only be demonstrated using information and/or evidence which was available to police officers. This element requires close examination of the facts of the case.
‘Reasonable and probable cause’ to prosecute an accused is said to exist when:
1. The prosecutor believes that the accused is probably guilty of the offence;
2. This belief is founded upon information and/or evidence in the possession of the prosecutor;
3. The prosecutor must believe the information and/or evidence, whether it consists of things observed by the prosecutor or things told to them by others, to be true;
4. There must be reasonable grounds for the prosecutor’s belief; and
5. In considering the above, an objectively prudent person would also believe that the accused is probably guilty of the offence.
In circumstances where either the prosecutor did not believe the prosecution was warranted, or a reasonable person would not have thought the prosecution warranted, then ‘reasonable and probable cause’ will not be said to have existed.
To sufficiently prove the element of ‘malice’, you must be able to prove that the police intended to do harm. In other words, it is necessary to establish that the prosecutor was motivated by means other than the administration of justice.
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.
As stated by the High Court in A v New South Wales  HCA 10: ‘What is clear is that, 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.’
Mere mistreatment by the police (or mere suspicion of illegitimate motive) will not meet the threshold for ‘malice’.
The most obvious defendant to bring a malicious prosecution action against is the state of NSW (ie the police force).
Of note is the fact that anyone who was actively instrumental in setting the prosecution in motion can also be held accountable. For example, a person who has aided and abetted the police force into maliciously prosecuting the accused, can be held liable.
As noted in Skrijel v Mengler  VSC 270: ‘… 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’.
If you would like to know more about malicious prosecution, we would be pleased to speak with you to answer any further questions. You can either book an appointment online or call us on (02) 4050 0330.