Malicious Prosecution/ Proof of Elements

Malicious Prosecution

List of Fact Sheets Glossary

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Introduction

Malicious prosecution is a tort which enables a person the subject of groundless and unjustified court proceedings ("the prosecution proceedings"), to seek a civil claim for damages against their prosecutor.  In order for a plaintiff to succeed in an action for malicious prosecution, they must prove:

1. the prosecution proceedings (normally criminal) were initiated by the prosecutor against the plaintiff;
2. termination of the prosecution proceedings was in the plaintiff's favour;
3. no reasonable cause for the prosecution
4. evidence of malice on the prosecutor's part; and
5. the plaintiff suffered actual damage.

The onus is on the plaintiff to prove each of these elements. Elements 2 to 5 are discussed in more detail below.

Termination

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.

See Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527.

Reasonable cause

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.
• This 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 himself or things told to him by others, must be believed by him to be true.
• This belief must be based upon reasonable grounds.
• The information possessed by the prosecutor and reasonably believed by him 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 a 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

Malice is a wrongful or improper purpose in bringing the prosecution.  It can be notions of spite, ill-will and improper motive.  It can be established if you can show the prosecutor has an improper, collateral purpose in bringing the prosecution. 
Examples of malice are where prosecution was brought:

• in order to silence the plaintiff in other legal proceedings,
• to punish the plaintiff for given evidence against the police in other proceedings,
• to prevent the holding of a shareholders meeting. 

Malicious prosecution can be similar to abuse of process.  But there is no need to prove malice in the case of abuse of process.

Damage

The plaintiff must prove actual damage.  This can be under one of the three heads

• Damage to reputation
• Damage to plaintiff's person or property
• Damage to 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 [1893] 2 QB 304.
See also:
Nye v State of New South Wales & ors [2003] 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