If you believe that you have been the subject of unjustified criminal proceedings, you may have grounds to sue for malicious prosecution.

Suing for Malicious Prosecution

The bar to sue for malicious prosecution is relatively high. This action is not the most common action taken against police and prosecutors.

According to the Judicial Commission of NSW, malicious prosecution is committed when a person or body wrongfully and with malice, institutes or maintains legal proceedings against another.

The notion of malice is important. It must be able to be proven that the legal proceedings were brought with malice and without reasonable grounds.

HD v State of NSW

HD v State of NSW [2016] NSWCA 85 is a key example of a case that the court decided was not malicious prosecution.

A child reported evidence of a physical assault to her friend, to her school teacher and subsequently the daughter was taken to ospital by ambulance and treated by doctors and social workers. She attended the police station but denied being hit by her father.

Nevertheless, the police initiated a serious assault charge against the father and instituted an interim AVO order. The charge was dismissed in the Local Court.

The father instituted proceedings for unlawful arrest and malicious prosecution.

The trial judge, and the Court of Appeal, dismissed the fathers claims.

The court found that the prosecution had no personal interest in the outcome of the matter and had just been exercising a public duty.

Elements of Malicious Prosecution

In order to succeed in malicious prosecution, you must be able to prove these five elements:

  1. The prosecution was initiated by the defendant (the State of NSW) against you (the accused person);
  2. The termination of the prosecution proceedings were in your favour (this can include dismissal of charges, findings of not guilty etc.);
  3. That the defendant did not have ‘reasonable and probable cause’ to bringing the proceedings;
  4. That the defendant engaged in malice;
  5. That the accused person has suffered actual damage as a result of the malicious prosecution.

GBB v State of NSW – a case study

O’Brien Criminal & Civil Solicitors represented a man who was walking at night in an inner city suburb of Sydney, when police allege he yelled abuse at a police officer.

The police approached the client and a confrontation ensued. The police placed him on the ground and one officer jumped on his knee – causing significant pain.

The client was then arrested and charged with using offensive language in a public place and assault/resist arrest.

O’Brien Criminal & Civil Solicitors acted for the client in a suit for wrongful arrest, assault and malicious prosecution. The matter was settled after being filed in the District Court. The client received significant compensation and damages for his treatment.

Contact us today for a free initial consultation

If you think you might have a case in malicious prosecution, contact us today for a free initial consulation.