References: [2008] Aust Contract Reports 90-280, [2007] Aust Torts Reports 81-878, (2007) 81 ALJR 763, (2007) 233 ALR 584, (2007) 230 CLR 500, [2007] HCA 10
Links: Austlii
Coram: Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Ratio: Austlii (High Court of Australia) Torts – Malicious prosecution – Whether prosecutor acted without reasonable and probable cause – Public rather than private prosecution – Applicant acquitted of offence charged – Prosecutor had no personal knowledge of the facts underlying the charge – Whether prosecutor did not honestly form the view that there was a proper case for prosecution or whether the prosecutor formed that view on an insufficient basis.
Torts – Malicious prosecution – Whether prosecutor acted maliciously – Whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law.
Words and phrases – ‘malicious prosecution’, ‘malice’, ‘absence of reasonable and probable cause’.
‘For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause’. And ‘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’
This case is cited by:
- Cited – Williamson -v- The Attorney General of Trinidad and Tobago PC (Bailii, [2014] UKPC 29)
(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .
(This list may be incomplete)
Last Update: 30-Jun-16
Ref: 536417