LAWS1003A Lecture Notes - Lecture 5: Malicious Prosecution, False Imprisonment
2 Jul 2018
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Week 4
Malicious Prosecution
Distinction from False Imprisonment.
- Malicious prosecution is an ‘action on the case.’
- Malice is needed, not just intention or negligence.
- Harm must be proven.
- Once there is a judicial decision to commit to trial, false imprisonment is no longer
available- as imprisonment is not a direct result of the defendant’s actions.
A judicial officer is immune from tort action; the action will not lie against a magistrate or
judge making a decision to commit someone to prison- see Jamieson v R (1993) 177 CLR 574.
An individual, including a public official, however, can be sued.
Elements:
- There have been two notably high profile cases in Australia in recent years, however cases
in malicious prosecution are generally very rare. In the High Court decision, A v NSW (2007)
81 ALJR 763, [2007] HCA 10, the tort was defined as follows:
[1]… 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 probably cause.1
Macfarlan JA also noted in State of New South Wales v Landini [2010] NSWCA 157:
To these elements should be added proof of damage, as malicious prosecution is an
action on the case (Davis v Gell [1924] HCA 56; (1924) 35 CLR 275).
The view that actual damage needs to be proven, was accepted in the later ACT decision in
Vatarescu v Commonwealth of Australia & The Australian Capital Territory [2012] ACTSC 96 (15 June
2012).
Institution of Proceedings:
Usually the proceedings involved are criminal, particularly because compensation is not always
enough for damages, and the higher reputational damage due to criminal proceedings being brought
against you.
1 Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) at 350-356.
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Document Summary
Malicious prosecution is an action on the case. ". Malice is needed, not just intention or negligence. Once there is a judicial decision to commit to trial, false imprisonment is no longer available- as imprisonment is not a direct result of the defendant"s actions. A judicial officer is immune from tort action; the action will not lie against a magistrate or judge making a decision to commit someone to prison- see jamieson v r (1993) 177 clr 574. An individual, including a public official, however, can be sued. There have been two notably high profile cases in australia in recent years, however cases in malicious prosecution are generally very rare. In the high court decision, a v nsw (2007) 81 aljr 763, [2007] hca 10, the tort was defined as follows: [1] for a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1)
