Malicious Prosecution claims involve accusations against public officers and/or private citizens of fabricating evidence or wrongfully pursuing legal proceedings against a person. The recent Supreme Court of New South Wales case summarised here examining several such claims provides a valuable insight into how courts query the submissions of plaintiffs alleging subjection to unjustified proceedings.
Background to the case
The plaintiff was a citizen of Afghanistan and became the spouse of the first defendant (an Australian citizen) in an arranged marriage a few months before arriving in Australia on a partner visa sponsored by the first defendant.
Several days after arriving in Australia, the plaintiff was charged with a series of domestic violence type offences against the first defendant and her brother (the second defendant who is also a police officer). These included offences of common assault, stalking and intimidation with the intent to cause fear of physical harm, and the use of text messages to menace and harass. In relation to the second defendant in particular, the plaintiff was accused of contravening an AVO and threatening with the intent to influence the second defendant as a witness.
The plaintiff was acquitted of all of these charges at a hearing in October 2016. Although the plaintiff was released from police custody, he was subsequently detained in an immigration detention centre until 19 September 2017.
This case in particular concerned the plaintiff’s proceedings against the first and second defendants for malicious prosecution. He claimed that the criminal charges against him arose from made up, false, and fabricated statements the first and second defendants submitted to police in a deliberate attempt to deport the plaintiff back to Afghanistan.
The plaintiff also brought proceedings against the State of New South Wales as the third defendant and these were settled.
Proving Malicious Prosecution
The tort of malicious prosecution refers to the act of commencing or maintaining legal proceedings against another person wrongfully or without justification.
There are four key elements that prove that a defendant is guilty of malicious prosecution:
- That the defendant did initiate and maintain the proceedings that are the basis for the plaintiff’s claim;
- The proceedings were terminated in the plaintiff’s favour;
- The defendant in initiating or maintaining the prosecution acted with malice; and
- The proceedings lacked reasonable and probable cause.
These elements are contained in the case of A v New South Wales (2007) 230 CLR 500, to which the court referred in its judgement for this case.
The Court’s Findings
First Element
Regarding the first element of malicious prosecution — whether each defendant can be deemed to have brought about the proceedings, i.e. was a ‘prosecutor’ — the court emphasised the necessity of both the active role of the defendants and the inability of the prosecuting authority to independently obtain knowledge about the information forming the basis of the proceedings.
In this case, the court found that the first defendant satisfied the requirements for being a prosecutor of the proceedings for the charges against the plaintiff of common assault and stalking and intimidation with the intent to cause fear of physical harm. For both charges, Cavanagh J found that the plaintiff’s former wife had instigated the actions of the prosecuting authority by giving a statement. In addition, insofar as the information in the statement was solely within the defendant’s knowledge (they related to events that occurred in a private environment with only the defendant’s sister-in-law as a witness), the defendant further cemented her role as an active procurer of the bringing of these charges.
The court further concluded that the second defendant qualified as a prosecutor. The former wife’s brother had similarly activated the bringing of charges that excluded the possibility of independent investigation — he too had submitted a statement and adduced only a witness as a means of corroborating his information.
In relation to the first defendant’s charges against the plaintiff for threatening text messages, however, Cavanagh J found that the first defendant did not count as a prosecutor. Since police would have been able to verify independently the sending and receipt of those messages, the first defendant did not play the key instigating role in the bringing of charges within the meaning of the tort.
Second Element
That the criminal proceedings had terminated in the plaintiff’s favour was not in dispute.
Third and Fourth Elements
In considering whether the plaintiff’s claim satisfied the third and fourth elements of the crime, the court focused on whether the defendants had intentionally provided a false statement to police; sufficient proof that the defendants provided evidence leading to an unfounded criminal charge would establish both the defendants’ malice and the groundlessness of the charges against the plaintiff.
Cavanagh J ultimately found that there was insufficient evidence to prove that either of the defendants had consciously concocted information when providing the statements that led to the charges against the plaintiff.
In arriving at this conclusion, the court queried the plaintiff’s account of events and construction of the defendants’ subjective states that he claimed implicated the accuseds’ enactment of, and intention to enact, malicious prosecution of the plaintiff. The plaintiff maintained in particular that his former spouse had been plotting from his first days in Australia to end her marriage to the plaintiff by removing him from the country through having him falsely convicted on criminal charges.
The court considered several perceived implausibilities of this account, including the fact that the plaintiff at one point obtained protective orders against the second defendant on the basis of reported information about his dispute with his former spouse which the plaintiff apparently knew to be false, and the fact that the defendants did not resort to less extreme means of having the plaintiff deported before availing themselves of criminal means to do so.
On the whole, the “high bar” set by the plaintiff’s apparently very charged construction of the first defendant’s intentions, in addition to various details in the plaintiff’s story that the court found dubious, prevented the plaintiff from convincing the court to a requisite degree that the plaintiff’s version of events was true.
The court was careful to note, however, that its determination that the plaintiff’s version of events was likely untrue did not amount to confirmation that the defendants’ versions of events were correct.
Outcome and Conclusion
The plaintiff did not succeed against either defendant.
The case demonstrates the difficulty of bringing a claim against a public officer or private citizen for malicious prosecution, particularly with respect to proving the subjective malice of the defendant. In satisfying the third and fourth elements of this kind of claim, the plaintiff will need to submit a set of facts and motivations that can withstand rigorous examination by the court.
Author: Jeremy King and Sophia Baldi
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy joined Robinson Gill in 2006 after graduating from Monash University with degrees in Law and Arts. He has a Masters of Law at Utrecht University in the Netherlands specialising in human rights and criminal justice. He is an Accredited Specialist in Personal Injury and the head of the firm’s personal injury law team.
Some other resources you
might find helpful
Benefits of a Special Disability Testamentary Trust Will
In Victoria, establishing a Special Disability Testamentary Trust (‘SDTT’) — a special disability trust created through a will — can further secure significant benefits for both the disabled beneficiary and the family members setting up the trust.
Waller v Barrett – At last! The internationally recognised tort of invasion of privacy finally becomes proper Australian law
The case of Waller v Barrett is an intriguing step forward in the common law and for the first time in Australian law establishes the tort of invasion of privacy. It is also a fascinating example of a Plaintiff taking a creative and innovative approach to both torts law and equitable remedies.
Overcoming the Unknown: Zoe’s Successful TAC Claim Story
In May 2018, a major road traffic collision left Zoe critically injured. Life as she knew it changed in an instant – and as she began the long journey towards recovery, she was faced with an uncertain future.