In Beckett v State of NSW the High Court has declared that in an action for malicious prosecution, the element of the cause of action that requires the criminal proceedings against the plaintiff to have terminated in their favour is satisfied where the DPP has exercised the power to direct that there be no further proceedings.
Despite what the newspapers triumphantly pronounced, this was not a case about whether or not Beckett was entitled to sue the State of NSW for malicious prosecution. She did not “win the right” to sue. It dealt with a very narrow issue about the effect of the DPP’s direction under section 7(2)(b) of the Director of Public Prosecutions Act 1986. Importantly for Beckett, it decided that she did not need to positively establish that she was innocent of the crimes with which she had been charged.
The issue arose in this way. Beckett was charged with a number of offences against her husband. She was committed to stand trial, a bill of indictment was found and she was arraigned upon it. She was found guilty of a number of the charges and sentenced to more than 12 years imprisonment. She appealed unsuccessfully against her convictions and sentence to the NSW Court of Criminal Appeal. She petitioned the governor for a review of her conviction, the result of which was that the NSW Court of criminal Appeal quashed a number of the convictions and ordered a new trial in respect of some of the counts. The DPP then directed that there be no further proceedings (it is important to note that is undoubtedly because by the time the Court of Criminal Appeal had quashed the convictions and ordered a new trial, the plaintiff had already served the bulk of her sentence).
The plaintiff then commenced proceedings in the NSW Supreme Court for malicious prosecution. The State of NSW asserted that the plaintiff had to establish her innocence of the charges in order to succeed. This was based upon the outcome of the High Court decision in Davis v Gell (1924) 35 CLR 275 in which the High Court held that where criminal proceedings are terminated by the entry of nolle prosequi the plaintiff is nonetheless required to prove their innocence. A subsequent decision of the High Court in Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 narrowly confined the holding in Davis. In Smith the criminal proceedings came to an end by the decision of the Attorney-General not to file an indictment. The Court held that the guilt or innocence of the plaintiff is not an issue going to the cause of action for malicious prosecution. However, they carved out of this general statement the case of nolle prosequi such as in Davis. The position of criminal proceedings terminated by nolle prosequi was rightly to be regarded as anomalous, but it remained binding nonetheless.
The issue that squarely arose in the Supreme Court was whether the direction by the DPP that there be no further proceedings was equivalent to the entry of nolle prosequi by the Attorney-General. The Supreme Court and the Court of Appeal held that it was, with the consequence that if Davis remained good law, then Beckett would have to establish her innocence at any trial of her malicious prosecution claim.
On appeal to the High Court, the Court held that a plaintiff needs to establish that the criminal proceedings terminated in their favour, but did not need to establish their innocence. The Court agreed with the NSW Court of Appeal that the direction by the DPP was equivalent to the entry of nolle prosequi and was sufficient to establish that the criminal proceedings had terminated in the plaintiff’s favour.
Some comments should be made about the High Court’s reasoning.
There are some statements made in the judgments to the effect that guilt or innocence of the plaintiff is not an issue in a cause of action for malicious prosecution. That may be accepted, but only in a narrow sense. It is true in the sense that a plaintiff does not need to prove innocence. But if a plaintiff remains convicted of an offence then the proceedings have not terminated in their favour, and accordingly guilt remain relevant in that sense.
However, it may also remain relevant in an evidentiary sense as well. Take, for example, a malicious prosecution case that will be heard in the NSW district Court next week. In that case the DPP issued a direction that there be no further proceedings, and accordingly the proceedings terminated favourably to the plaintiff, and she is not required to prove her innocence. However in the civil proceedings she has sued not only the State of NSW but the complainants whose statements brought about the charges in the first place. In order to succeed the plaintiff must also prove an absence of reasonable and probable cause, and that the prosecution was brought about maliciously. To the extent those two elements of the cause of action are directed against the complainants, it remains open to those defendants to prove that the plaintiff in fact committed the offences for which she was charged, in order to firstly establish reasonable and probable cause and secondly to rebut any inference of malice.
More fundamentally, the supposed justification for the element of the cause of action that requires proceedings to have terminated favourably for the plaintiff does not support the outcome arrived at in this case (or indeed much of the other caselaw in relation to favourable termination. That justification is described as being “the concern of the law with the consistency of judicial determinations, a concern that is distinct from proof of actual innocence or guilt: a plaintiff who is wrongfully convicted of an offence cannot maintain an action for malicious prosecution notwithstanding that he or she may possess irrefutable proof of innocence.” But that concern of consistency of judicial determinations is not achieved by a rule that allows anything short of acquittal as satisfying the favourable termination element. Unless the termination of proceedings is such as to foreclose the possibility of subsequent prosecution, there always remains the possibility of a successful claim for malicious prosecution being followed by a successful prosecution for the crime. A direction under section 7 of the section 7(2)(b) of the Director of Public Prosecutions Act 1986, like the entry of nolle prosequi, does not prevent the recommencement of criminal proceedings, and so the possibility of inconsistent outcomes remains.
One undesirable consequence of this rule, returning now to the facts of Beckett’s case, is this. The decision not to retry Beckett was undoubtedly made having regard to the fact she had already effectively served her time. It would be unfortunate for decisions as to whether to retry an accused came to be influenced by the consideration that the State would then be left exposed to a claim for malicious prosecution. What purpose does it serve to encourage prosecuting authorities to retry an accused simply to establish their guilt, in order to foreclose a civil claim, in circumstances where further punishment is unlikely.