No Requirement to Prove Innocence in Malicious Prosecution: Beckett v New South Wales

By Dr Katy Barnett

Beckett v New South Wales Case Page

In Beckett v New South Wales [2013] HCA 17, the High Court overruled its own previous authority outlining the circumstances in which a person can sue for the tort of malicious prosecution. The tort of malicious prosecution allows a plaintiff who was the subject of malicious and unreasonable court proceedings to seek a civil claim for damages against the prosecuting party. The malicious and unreasonable proceedings are generally (but not always) criminal in nature. In order to make out the tort, a plaintiff must prove (among other things) that the prosecution ultimately terminated proceedings in her favour. In this case, the Director of Public Prosecutions had decided to discontinue criminal proceedings against the plaintiff after a retrial had been ordered by the New South Wales Court of Criminal Appeal. The question for the Court in this case was whether the action of the DPP constituted termination of proceedings in the plaintiff’s favour, or whether it was necessary for her to go further and prove her innocence.

The previous High Court authority, Davis v Gell [1924] HCA 56, held that where proceedings have been terminated by the entry of a nolle prosequi on the court file, a plaintiff must prove her innocence to succeed in a subsequent action for malicious prosecution. (A nolle prosequi is a voluntary decision by the Attorney-General or the prosecutor to cease proceedings.) The High Court overturned Davis v Gell and said that a plaintiff is not required to further prove her innocence when bringing a claim for malicious prosecution if the prosecution has terminated in a way that is favourable to the plaintiff.

What Was Ms Beckett Prosecuted for in the First Place, and Why Was It Problematic?
The original prosecution occurred after Ms Beckett was accused of attempting to poison her estranged husband, Mr Catt; attempting to get third parties to injure or murder her estranged husband; malicious wounding and assault; and perjury. These accusations were made in the context of an acrimonious family breakdown where Mr Catt’s children from his previous marriage had accused him of abusing them emotionally and sexually. The New South Wales government prosecuted Ms Beckett, and in 1991 she was gaoled for 12 years for these offences, with a non-parole period of 10 years and three months. She unsuccessfully appealed both the convictions and sentence in 1993.

In 2001, Ms Beckett petitioned the Governor seeking a review of her convictions. The Attorney-General referred the application to the New South Wales Court of Criminal Appeal (NSWCCA). The NSWCCA remitted a number of factual questions to Acting Judge Davidson. Following the delivery of Judge Davidson’s findings, in 2005 the NSWCCA allowed the appeal in relation to a number of counts, quashed each conviction and ordered a new trial in respect of them. It entered a verdict of acquittal on one count, and dismissed the appeal in relation to two of the counts. On 22 September 2005, the Director for Public Prosecutions directed that there be no further proceedings against the appellant on the outstanding charges. On 26 September 2005, the Director’s determination to cease the prosecution was forwarded to the Registry of the Court of Criminal Appeal and to Ms Beckett.

The evidence which led Judge Davidson and the NSWCCA to question Ms Beckett’s conviction and prosecution included evidence which suggested that the police officer, Peter Thomas, who had primarily been responsible for collecting the evidence which led to Ms Beckett’s prosecution bore considerable animosity towards her. He had previously charged Ms Beckett with arson, but the arson prosecution was discontinued after the committal stage. In the wake of this, Ms Beckett had made a number of complaints about Thomas’ conduct to the Ombudsman and the Police Internal Affairs Department.

What Were the Circumstances of the Malicious Prosecution Case?
In 2008, the appellant instituted proceedings against the State of New South Wales for the tort of malicious prosecution, alleging that it was vicariously liable for the actions of its police officers. The trial judge held that the Director’s decision not to proceed with the charges was equivalent to the entry of a nolle prosequi by the Attorney-General, and applied Davis v Gell. The consequence was that Ms Beckett was required to prove her innocence to succeed in her action for malicious prosecution. The Court of Appeal affirmed the trial judge’s decision.

The High Court’s Decision: Ms Beckett Could Bring Her Claim
In this case, the New South Wales Director of Public Prosecutions was empowered to direct that no further proceedings would be taken against a person who is committed for trial or sentence pursuant to s 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW). The Court confirmed that the Director of Public Prosecutions’ statutory power to cease a prosecution was in effect the same as the Attorney-General’s prerogative power to enter a nolle prosequi. The concern of the High Court in Davis v Gell had been that the entry of a nolle prosequi did not provide a sufficient end to the proceeding because it was always possible for the accused to be reindicted on a fresh charge. Previously, the High Court in Commonwealth Life Assurance Society v Smith [1938] HCA 2 had drawn a distinction between situations where the Director had found no bill of indictment against an accused who had been committed for trial (as occurred in the original arson proceedings against Ms Beckett) and situations where the Director had simply directed that no further proceedings should occur (as occurred in the second proceedings against Ms Beckett).

The Court in Smith also identified three reasons why the plaintiff was required to show that that the prosecution proceedings must have terminated in her favour. First, it was necessary to prevent an accused from questioning her conviction through collateral civil proceedings. Secondly, it was necessary to prevent an accused from querying the fairness of a proceeding by instituting a civil action while the first was still being determined. Thirdly, only a terminated proceeding could be assessed as unreasonable and without foundation.

The plural judgment (Chief Justice French, Justices Hayne, Crennan, Kiefel and Bell) said at [54] that to hold that a nolle prosequi was not evidence of a favourable termination of proceedings would produce an ‘anomalous outcome’, namely that Ms Beckett could lead new evidence tending to establish her innocence in order to show that there was an absence of reasonable and probable cause, but the State would not be able to lead new evidence tending to establish her guilt. Consequently it concluded Davis should be overruled.

Similarly Justice Gageler said at [61]–[62]:

The controversy referred to in Smith about the effect of a nolle prosequi has now long been resolved. At common law, the entry of a nolle prosequi terminates proceedings on an indictment even though it does not prevent new proceedings being brought on a new indictment.

Termination of prosecution proceedings by entry of a nolle prosequi should be held to be sufficient to establish the element of the cause of action in malicious prosecution that requires prosecution proceedings to have terminated in the plaintiff’s favour. The Full Court of the Supreme Court of New South Wales properly so held, after Smith, in Mann v Jacombe. To treat termination of proceedings by entry of a nolle prosequi as a termination in the plaintiff’s favour for the purpose of an action in malicious prosecution is consistent with the first two reasons identified in Smith for the rule that prosecution proceedings must have terminated in the plaintiff’s favour. It is no less consistent with the third reason than was the form of termination in Smith itself, being refusal to file an indictment.

What Now?

Now that Ms Beckett has established that there were proceedings of the relevant kind, and that those proceedings terminated in her favour, she will now be required to show that the State acted maliciously in initiating the proceedings, and that the State acted without reasonable and probable cause. Certainly the High Court has removed a significant hurdle for Ms Beckett by removing the necessity for her to prove her innocence.

If Ms Beckett does establish malicious prosecution, I note that she may be able to establish an entitlement to exemplary damages (designed to punish) or aggravated damages (designed to compensate for emotional distress and injury to dignity).

More broadly, the decision has been hailed by the Rule of Law Institute of Australia as a welcome ‘streamlining’ of law which reduces the burden on persons like Ms Beckett who have been found guilty and spent many years in gaol, but then had many aspects of their appeal upheld and a stay of prosecution.

On the other hand, the decision has been criticised by Law Geek Downunder blog as raising the possibility that there could be a case where a plaintiff successfully establishes malicious prosecution, and then new proceedings result in a successful prosecution for the crime. The fear is that decisions to retry an accused would be made not on the basis of common sense but to forestall a claim for malicious prosecution.

Ultimately, it seems to me that the decision in this case is a fair one. There may be some difficulties of the kind mentioned by the Law Geek Downunder blog, but it seems to me that it would be an abuse of process for a prosecution to be instituted simply to forestall a claim of malicious prosecution, and that in a case where the original prosecution was groundless, if not malicious, the courts would be alive to this possibility.

AGLC3 Citation: Katy Barnett, ‘No Requirement to Prove Innocence in Malicious Prosecution: Beckett v New South Wales’ on Opinions on High (3 July 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/07/03/barnett-beckett/>.

Dr Katy Barnett is a Senior Lecturer at Melbourne Law School and an Editor of Opinions on High.

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