Malicious prosecution factsheet
Malicious prosecution is a tort or a civil wrong, which enables a person who is the subject of groundless and unjustified court proceedings to seek a civil claim for damages against their prosecutor.
The following are examples of prosecution proceedings terminated in the plaintiff's favour:
- Acquittal of the plaintiff on the merits of the case;
- Termination of the case where conviction is quashed for technical reasons such as a misdirection to the jury by the trial judge;
- Discontinuance of the prosecution by the prosecutor before verdict;
- Termination of the prosecution because the Crown enters a nolle prosequi.
A nolle prosequi is a formal notice of discontinuance of an action lodged by the prosecution. See Maxwell v R  HCA 62.
If the prosecution proceedings are terminated in a way that means that the accused person is not actually found guilty by a Court (such as where a nolle prosequi is entered), the plaintiff does not need to positively prove their innocence in order to recover damages for malicious prosecution.
See Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 and Beckett v New South Wales  HCA 17.
The plaintiff must prove that the prosecutor started the prosecution without reasonable cause.
Reasonable cause is established when the following conditions exist:
- The prosecutor must believe that the accused is probably guilty of the offence;
- The belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise;
- The information, whether it consists of things observed by the prosecutor or things told to him or her by others, must be believed by him or her to be true;
- This belief must be based upon reasonable grounds;
- The information possessed by the prosecutor and reasonably believed by him or her to be true, must be such as would justify a person of ordinary prudence and caution in believing that the accused is probably guilty.
A close examination of the facts of each case and the elements of the offence for which the plaintiff was charged is necessary in considering whether an action for malicious prosecution is warranted.
It is reasonable for the prosecutor to bring the charge if the question of whether the plaintiff was sufficiently involved in the offence is a matter to be left to the jury. Also, if the plaintiff's involvement is a question of fact to be left to the jury, then the prosecutor's decision to continue the prosecution gives no grounds for the action.
It is necessary for the plaintiff to prove that the prosecutor did not hold the belief, or did not hold the belief on reasonable grounds. The evidence necessary to challenge the belief is not supplied by proof that the prosecutor was aware of facts which might or might not have satisfied the prosecutor of the plaintiff's guilt, or that the defendant had information, some of which pointed to guilt and some to innocence.
To escape liability, the prosecutor need only be found to have had an honest belief in the fact that there was a sufficient case to launch a prosecution against the plaintiff, not a belief that a conviction would be secured.
Malice is a wrongful or improper purpose in bringing the prosecution. In can be notions of spite, ill-will and improper motive. Malice can be established if it can be demonstrated that the prosecutor has an improper and collateral purpose in bringing the prosecution.
Examples of malice where prosecution was brought:
- in order to silence the plaintiff in other legal proceedings;
- to punish the plaintiff for giving evidence against the police in other proceedings;
- to prevent the holding of a shareholders' meeting.
Malicious prosecution can be similar to abuse of process. However, unlike actions for abuse of process, malice must be established in actions for malicious prosecutions.
The plaintiff must prove actual damage. This can be done under one of three heads:
- Damage to the plaintiff's reputation
- Damage to the plaintiff's person or property
- Damage to the plaintiff's pecuniary interest.
As regards reputation, the fact that it could have defamatory overtones, that is, capable of being understood in a defamatory sense, is not enough. It may be sufficient damage if the prosecution caused the plaintiff's imprisonment. Pecuniary loss to the plaintiff may include legal costs incurred in defending the charge in the prosecution proceedings.
Being charged and therefore exposed to the risk of loss of liberty has been held to constitute sufficient damage: Rayson v South London Tramways  2 QB 304.
Commonwealth Life Assurance Ltd v Smith (1938) 59 CLR 527.
Beckett v New South Wales  HCA 17
Nye v State of New South Wales & ors  NSWSC 1212.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Rejfek v McElroy (1965) 112 CLR 517.
Mitchell v John Heine and Son Ltd (1938) SR (NSW) 466.
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