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A v New South Wales; 21 Mar 2007

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’
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