Dear Colleagues;
The ratio of the second tort decision handed down by the High Court of Australia today can be summarised fairly briefly, but explaining the facts takes a few moments. In Beckett v New South Wales [2013] HCA 17 (8 May 2013) the plaintiff is suing the State as vicariously liable for a malicious prosecution she claims took place at the hands of two police officers. She was initially convicted of murder and served some time in prison, when a later review found that the first proceedings were unsatisfactory. Her initial conviction was not overturned, however; a new trial was ordered on some of the charges. In light of the time already spent in prison, the Director of Public Prosecutions exercised a power not to proceed with the charges. This statutory power was found by the HC to be identical to the common law prerogative of the Attorney General to file a nolle prosequi.
However, this had a serious impact on her subsequent action for malicious prosecution. An old, 1924, decision of the High Court, Davis v Gell (1924) 35 CLR 275; [1924] HCA 56 held that a nolle prosequi was not automatically a "favourable termination" of proceedings upon which an accused could later mount an action for malicious prosecution. Certain obiter comments in that case about the need for the plaintiff to "prove their innocence" were rejected in a later decision, Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; [1938] HCA 2, but Smith preserved the precise decision in Davis by saying that the case of a nolle constituted an exception to the normal rule.
Hence the NSW Court of Appeal in these proceedings appealed here, felt obliged to rule that Ms Beckett would have to prove her innocence in her malicious prosecution case. The High Court in today's proceedings held that Davis should be over-ruled, and that Smith represents the law on the topic- see [55], [60]. Ms Becket will now have her day in court.
Regards
Neil




Neil Foster
Associate Professor,
Newcastle Law School;
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
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