What is malicious prosecution?
Malicious prosecution involves legal action being taken against a defendant in order to deliberately cause harm – rather than on reasonable grounds or with reasonable and probable cause.
Malicious prosecution has been an entrenched part of common law for many centuries. Courts regard the pursuit of defendants for a malicious reason seriously as it is a huge waste of valuable resources within the justice system.
The Law on Malicious Prosecution
Malicious Prosecution is most readily defined in the following cases:
- A v The State of NSW (2007) 230 CLR 500
- Beckett v NSW (2013) 87 ALJR 602
- NSW v Zreika  NSWCA 37
- State of NSW v Quirk  NSWCA 216
Reasonable and Probable Cause
To prove malicious prosecution, a number of key elements must be present.
First, a criminal charge must have been brought by the prosecution. That is, there can’t just be the threat of a charge a defendant. The charge then needs to be terminated in favour of the defendant, with ‘termination’ able to take a number of forms.
Importantly, it is necessary to show that the prosecution pursued the matter without reasonable and probable cause. This doesn’t mean that they needed a particularly strong case – just that they had something credible to go on when they started prosecuting.
The Courts have unequivocally stated in the past that where evidence is obtained illegally, and on balance the extent of illegality outweighs the probative value of this evidence, then that evidence is not to be included in the equation of determining reasonable and probable cause.
Unsurprisingly, malice towards the defendant needs to be present. This means that the prosecution deliberately proceeded with unfair intentions. Considering the significant power and resources available to many prosecution teams, criminal defence lawyers are experienced at identifying when a possible malicious prosecution may be occurring against their defendant clients.
However, caution must be exercised when determining malice. A prosecution may have malice, even the utmost malice, but both malice and an absence of reasonable and probable cause must be satisfied before a Court finds that there has been a malicious prosecution.
Proving malice is not easy, in fact they are legally some of the most difficult claims to win because of a principle known as the ‘Briginshaw Standard’ as found in the case of Briginshaw v Briginshaw (1938) 60 CLR 336. Ordinarily there are two ‘standards of proof’ known to the law, namely:
- Beyond reasonable doubt – criminal
- Balance of probabilities – civil
Whilst civil claims against the Police are civil proceedings, because a serious allegation of misfeasance or improper conduct is being made, the Court must go one step further than being satisfied on the balance of probabilities, it must be comfortably satisfied. Furthermore, the more serious the claim of the Police’s misfeasance or misconduct, the more comfortably satisfied the Court must be.
The actual effect upon the defendant becomes an important element in these cases.
Under the tort of malicious prosecution, the defendant needs to show that they have suffered actual physical, economical, psychological or emotional loss as a result of the malicious and wrongful action carried out by the prosecution. It’s not hard to see how a wrongful prosecution of this nature could leave lasting damage.
The Court will also award ‘exemplary damages’ in order to send an example to the defendant to reduce the likelihood of this happening again.
Going for Fairness
Most defendants understand that both sides in any criminal matter will be seeking the best outcome. Hard work, good evidence and strong arguments can be expected both from the prosecution and the defence. But what shouldn’t be part of any criminal matter is the damaging presence of malicious prosecution. If you or your criminal defence lawyer suspects that this is the case, it is better to raise this sooner rather than later. Seek expert advice on the best way to ensure a fair outcome for your particular case.
Nyman Gibson Miralis have malicious prosecution lawyers with knowledge and experience to do what is necessary to make sure that you make a wrong, right.