Your current browser may not support copying via this button. Sign In Contents. Subscriber sign in You could not be signed in, please check and try again. Username Please enter your Username. Password Please enter your Password. Forgot password? Don't have an account? Sign in via your Institution. You could not be signed in, please check and try again. Sign in with your Library Card Please enter your library card number. He served a number of years in prison before the NSW Court of Appeal acquitted him on the murder charge.
The court found that the verdict had been unreasonable. The plaintiff brought proceedings for damages on the basis of malicious prosecution.
The plaintiff identified three prosecutors, namely the lead detective, the expert witness and the actual Crown Prosecutor. Central to the Crown case had been the expert witnesses evidence that the deceased must have been thrown from the cliff to land where her body had been located.
However, the theory and conclusion had been fundamentally flawed and left open the reasonable possibility of suicide. The primary judge was trenchantly critical of the Crown Prosecutor. Who is the prosecutor? In the past, informations were laid privately, whereas in modern times prosecutions are generally in the hands of the police and subsequent prosecuting authorities, such as the Director of Public Prosecutions.
In A v State of NSW , as is most often the case, it was a police officer who was the informant who laid charges against the defendant. On the other hand, in the Coles Myer case, the police had acted lawfully in detaining two men identified by a store manager as acting fraudulently in a department store. It was held that the store manager, however, had acted maliciously and had, without reasonable cause, procured, and brought about the arrest by involving the police.
See also Martin v Watson [] AC 74 at 86—7. Generally, however, a person who provides the police with information, believing it to be true, will be held not to have initiated the proceedings. Rather, the proceedings will be regarded as instituted by and at the discretion of an independent prosecuting authority: Commonwealth Life Assurance Society Limited v Brain 53 CLR , at per Dixon J. This, together with the concept of malice, are the components of the tort most difficult to prove.
This is especially so where a member of the public has given apparently credible information to the police and the police have then charged the plaintiff with a criminal offence. The question arises: how does a plaintiff go about establishing the negative — an absence of reasonable and probable cause? As has been pointed out Barker et al p 91 there is an important temporal element in determining whether the defendant commenced or maintained the proceeding without reasonable or probable cause.
This will first focus on the matters known at the time of institution of the proceedings, and then subsequently on fresh matters known as the proceedings continue. In State of NSW v Zreika , above, the plaintiff succeeded in assault, wrongful arrest and malicious imprisonment claims against police. There had been a shooting at a home unit in Parramatta.
Shortly after the shooting, the plaintiff was reported as having made some bizarre remarks at a nearby service station. The police officer investigating the shooting, when informed of this, became convinced that the plaintiff was the shooter and, five days later, arranged for his arrest and charging. However, a description of the shooter and his vehicle could not conceivably have matched the plaintiff.
Despite all this, the plaintiff was refused bail on the application of the police and remained in custody for two months before the Director of Public Prosecutions withdrew all charges against him. In A v State of NSW , the plaintiff had been arrested and charged with sexual offences against his two stepsons.
The High Court agreed with the trial judge that the evidence demonstrated that the plaintiff had shown an absence of probable belief in the case of the charge relating to the younger child but had failed to do so in the case of the older boy. In the first situation, the police officer did not form the view that the material he possessed warranted laying the charge; or, alternatively, if he had in fact formed that view, there was no sufficient basis for his doing so.
In this regard, it is not enough to show the prosecutor could have made further or different enquiries. They approved a general statement in Fleming at At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.
The plurality instanced cases of spite and ill-will; and cases where the dominant motive was to punish the alleged offender. Generally, there must be shown a purpose other than a proper purpose. However, strict proof will be required, not conjecture nor mere suspicion. The plaintiff succeeded in A v State of NSW on the malice issue because he was able to show that the proceedings were instituted by the police officer essentially because he had been under extreme pressure from his superiors to do so, not because he wished to bring an offender to justice.
In State of New South Wales v Zreika , the police officer was motivated by an irrational obsession with the guilt of the plaintiff, despite all the objective evidence pointing to his innocence. However, it is necessary to stress that the presence of malice will not of itself be sufficient to establish the tort, there must also be an absence of reasonable and probable cause. In proceedings for false imprisonment, it is necessary to consider first whether the plaintiff was detained; and second, if so, whether there was a justification for the detention.
The two issues need to be addressed separately. In addition, there must be some factual basis for either the suspicion or belief. The state of mind may be based on hearsay materials or materials which may otherwise be inadmissible in evidence.
The question of identifying the material sufficient to support an objective finding that an arresting officer had reasonable grounds for his or her belief has to be approached with practical considerations as to the nature of criminal investigations in mind: Hyder v Commonwealth of Australia A Crim R at [18]—[19] per McColl JA.
The respondent was taken to the police station and retained there until his release on bail. The State of NSW relied on two critical defences. The Court of Appeal agreed with the trial judge that neither of these defences had been made out. There had been no basis to suspect, on reasonable grounds, that the arrest was necessary.
In State of NSW v Robinson [] NSWCA , the Court of Appeal held that for an arrest to be lawful, a police officer must have honestly believed the arrest was necessary for one of purposes in s 99 3 repealed and the decision to arrest must have been made on reasonable grounds: at [27], [44]. Although s 99 3 has since been repealed, the primary judge misconstrued important legislation which governs the circumstances in which people are lawfully arrested.
The arresting officer must form an intention at the time of the arrest to charge the arrested person. The majority in Robinson held that arrest cannot be justified where it is merely for the purpose of questioning. An arrest can only be for the purpose of taking the arrested person before a magistrate or other authorised officer to be dealt with according to law to answer a charge for an offence and nothing in LEPRA or any previous legislative amendment displaces that single criterion: at [63], [92]—[94], []—[], [].
These were identified as:. The unlawful act is threatened, unless B refrains from exercising his legal right to deal with C, and. The tort has not established a large foothold in the jurisprudence of Australia or England, and examples of parties succeeding on the basis of the tort are rare: see Williams v Spautz at for examples and the discussion in Burton v Office of DPP NSWLR at [14]—[42]; [48]—[49], [60]; [].
The tort was established in Grainger v Hill ER The tort of collateral abuse of process differs from the older action for malicious prosecution in that the plaintiff who sues for abuse of process need not show: a that the initial proceedings has terminated in his or her favour; and b want of reasonable and probable cause for institution of the initial proceedings. Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers.
While an action for collateral abuse can be brought while the principal proceedings are pending, the action is at best an indirect means of putting a stop to an abuse of the court's process: Williams v Spautz , above at , citing Grainger v Hill. The majority in Burton v Office of DPP , above, found it unnecessary to decide on an authoritative formulation of the elements of the tort cf Bell P at [42] in what was an appeal from the summary dismissal of proceedings seeking damages for breach of the tort.
Aronson suggests that what has emerged over the last 50 or so years is in reality nothing less than a new tort to meet the needs of people living in an administrative State.
Only public officers can commit the tort, and only when they are misusing their public power or position. It is an intentional tort: it is not enough to prove gross incompetence, neglect, or breach of duty.
Oxford Reference. Publications Pages Publications Pages. Recently viewed 0 Save Search. Your current browser may not support copying via this button. Subscriber sign in You could not be signed in, please check and try again.
Username Please enter your Username. In such actions, the plaintiff does not have to prove that he suffered any damages in order to have a cause of action. Tort claims normally require proof of damages. A tort that is actionable per se does not require proof of damages to be actionable; such a tort is actionable simply because it happened. Of course, if you are unable to show that you have suffered any loss, the damages you recover are unlikely to be significant.
Defamation and trespass are two class examples of torts that are actionable per se. In cases of assault, battery, false imprisonment, libel or trespass on land, the mere wrongful act is actionable and it is immaterial that the plaintiff has not suffered any damage as a result of it.
0コメント