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Malicious Prosecution

This document summarizes a case note about the tort of malicious prosecution and how it applies to institutional prosecutors. It discusses how the High Court of Australia recently attempted to clarify the elements of the tort in its application to modern prosecutorial arrangements in the case of A v New South Wales. Specifically, it notes that past decisions have neglected to address the requisite belief needed by large bureaucratic prosecution agencies, rather than private individuals, to initiate proceedings. The case note examines the High Court's efforts to reconcile conflicting precedents and suggests its ruling provides a subtle but necessary departure from previous understandings of the tort.

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Anshul Yadav
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40 views1 page

Malicious Prosecution

This document summarizes a case note about the tort of malicious prosecution and how it applies to institutional prosecutors. It discusses how the High Court of Australia recently attempted to clarify the elements of the tort in its application to modern prosecutorial arrangements in the case of A v New South Wales. Specifically, it notes that past decisions have neglected to address the requisite belief needed by large bureaucratic prosecution agencies, rather than private individuals, to initiate proceedings. The case note examines the High Court's efforts to reconcile conflicting precedents and suggests its ruling provides a subtle but necessary departure from previous understandings of the tort.

Uploaded by

Anshul Yadav
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd

Case Note

Determining Where the Truth Lies: Institutional


Prosecutors and the Tort of Malicious Prosecution
NORM MAAMARY*

Abstract
The High Courts near unanimous decision in A v New South Wales1 constituted
an attempt to develop a modern judicial approach to the tort of malicious
prosecution. Despite the regular pleading of the tort in civil claims, Australian
decisions are characterised by their general neglect in addressing the requisite
belief needed by institutional and bureaucratic prosecutors in commencing
proceedings. In an era where prosecutions are set in train by large bureaucratic
agencies such as the NSW Police Service, rather than private individuals, the
utility of a tort whose framework was designed prior to the establishment of these
agencies, required fundamental reassessment. Notwithstanding the High Courts
ultimately unconvincing attempts to reconcile conflicting authority as they
related to the third and fourth elements of the tort, this article suggests that the
courts final determinations in A v New South Wales provide a subtle, but
necessary departure from previous authority.

1.

Introduction

In attempting to safeguard the judicial process from misuse by litigants, the tort of
malicious prosecution has historically provided those who are the subject of
groundless and unjustified proceedings a means of redress against prosecutors.
While the impetus for the development of the tort has largely arisen as a result of
private litigation, the recent High Court of Australian decision in A v New South
Wales reflects an attempt by the court to clarify the continuing function and
elements of the tort in the context of modern arrangements for the prosecution of
crime. As a result of the absence of organised police forces and offices of public
prosecution at the time the framework of the tort was first developed, Australian
and English decisions are characterised by their general neglect in addressing the
requisite belief needed by institutional and bureaucratic prosecutors in
commencing proceedings.
For a plaintiff to succeed in an action for malicious prosecution it has
consistently been held that the plaintiff must establish:

1
* Final year student, Faculty of Law, University of Sydney. The author would very much like to
thank Ross Anderson for his guidance in developing this paper.
1 A v New South Wales (2007) 233 ALR 584.

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