Citation: Sonter v State of NSW [2006] NSWDC 30
Court: District Court of NSW
Date: 22 August 2006
Judge(s): Johnstone DCJ
Background
The plaintiff was involved in an altercation at a hotel in Inverell in the early hours of 30 December 2000. He was subsequently charged by a police officer (then a Senior Constable) with two counts of assaulting another man, occasioning actual bodily harm and common assault. The charges were dismissed by a magistrate at the Inverell Local Court in May 2002.
The plaintiff commenced proceedings in 2004 against the State of NSW, alleging that the charging officer had acted maliciously and without reasonable and probable cause when laying the charges. The State was sued on the basis that it is vicariously liable for the conduct of its police officers.
The plaintiff claimed special damages of $10,633 for legal costs incurred in defending the charges, as well as general, aggravated, and punitive damages for injury to reputation, emotional distress, inconvenience, and embarrassment.
Legal Issues
- Whether the charging officer had reasonable and probable cause to lay the charges against the plaintiff
- Whether the charging officer acted with malice, in the sense of spite, ill-will, or an impermissible motive
- What quantum of damages would have been appropriate had the plaintiff succeeded
Decision
The court began by confirming that malicious prosecution requires proof of two core elements: absence of reasonable and probable cause, and malice. Both elements must be established. Reasonable and probable cause means an honest belief in the case for prosecution, held on reasonable grounds, judged objectively by reference to the information available to the officer at the time of charging.
The court examined the various witness statements gathered before the charges were laid. Several witnesses provided accounts supporting the view that the plaintiff had initiated the altercation with the complainant. The court found that the charging officer honestly believed, and had reasonable grounds to believe, that a prosecution was justified. The dismissal of the charges at the Local Court did not, of itself, demonstrate an absence of reasonable and probable cause.
On the question of malice, the court found no evidence of spite, ill-will, or any impermissible motive on the part of the charging officer. The plaintiff had attempted to draw inferences of malice from the circumstances of the investigation, but the court was not persuaded that those inferences were warranted on the evidence.
Because both elements of malicious prosecution were not established, judgment was entered for the defendant. The court nonetheless went on to assess damages in case it was wrong on liability. It assessed compensatory general damages at $5,000 and special damages at $6,500, noting the evidence of emotional consequences was limited and general, and declining to award aggravated or exemplary damages.
Orders Made
- Judgment entered for the defendant
- Costs reserved pending argument
Key Takeaways
- To succeed in malicious prosecution, a plaintiff must establish both the absence of reasonable and probable cause and the presence of malice; failing either element is fatal to the claim.
- Reasonable and probable cause is assessed by reference to the information actually available to the officer at the time of charging, not with the benefit of hindsight or by reference to the subsequent outcome of proceedings.
- An acquittal or dismissal of charges does not, without more, establish that reasonable and probable cause was absent when the prosecution was commenced.
- Malice requires proof of spite, ill-will, or an impermissible motive; a mere suggestion that an investigation was imperfect or could have been conducted differently does not satisfy that threshold.
- Where damages were assessed (without liability being found), the District Court indicated that limited and general evidence of emotional distress, absent medical evidence or demonstrated reputational loss, would attract only modest compensatory damages, with no basis for aggravated or exemplary awards.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
Cases
- A v State of New South Wales [2005] NSWCA 292
- Glinski v McIver [1962] AC 726
- Hicks v Faulkner (1878) 8 QBD 167
- Herniman v Smith [1938] 1 All ER 1
- Lister v Perryman (1869-70) LR HL 521
- Lye v State of New South Wales [2005] NSWCA 282
- Mitchell v John Heine (1938) 38 SR (NSW) 466
- Rapley v Rapley (1930) 30 SR 94
- Sharp v Biggs (1932) 48 CLR 81
- Trobridge v Hardy (1955) 94 CLR 147
- Turner v Ambler (1847) 10 QB 252; 116 ER 98