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Supreme Court 5 August 2011

Beckett v The State of New South Wales (No. 1)

[2011] NSWSC 818

Public order & justice offences
TORTS MALICIOUS CRIMINAL PROCEEDINGS ESSENTIALS OF CAUSE OF ACTION GENERALLY PLAINTIFF CONVICTED BY JURY RETRIAL ORDERED ON APPEAL EFFECT OF ENTRY OF A NOLLE PROSEQUI

Citation: Beckett v The State of New South Wales (No. 1) [2011] NSWSC 818
Court: Supreme Court of New South Wales
Date: 5 August 2011
Judge: Davies J

Background

The plaintiff was convicted by a jury in 1991 on multiple counts, including malicious wounding, perjury, administering a noxious substance, and soliciting murder. Her appeal was dismissed by the Court of Criminal Appeal in 1993. Years later, following a petition to the Governor and a reference under the Crimes Act 1900, a judge conducted an inquiry into the factual issues, and the matter returned to the Court of Criminal Appeal.

In 2005, the Court of Criminal Appeal quashed the plaintiff's convictions on counts 1, 2, 5, 6, 7 and 9, ordered retrials on counts 1, 2, 5, 6 and 7, dismissed the appeal on counts 3 and 4, and directed an acquittal on count 9 (unlicensed pistol possession, where the sentence had already been served). Shortly after, the Director of Public Prosecutions (DPP) decided to proceed no further on the counts for which a retrial had been ordered.

The plaintiff then commenced civil proceedings against the State of New South Wales for malicious prosecution. A threshold procedural question arose: given how each count had been resolved, did the plaintiff need to prove her actual innocence on any of those counts in order to succeed in the civil action?

  • Whether the DPP's decision not to proceed further on counts 1, 2, 5, 6 and 7 (following the order for retrial) constituted a nolle prosequi (a formal discontinuance of proceedings).
  • Whether the entry of a nolle prosequi requires a plaintiff suing for malicious prosecution to prove innocence of the underlying charges.
  • Whether the directed acquittal on count 9 should be treated analogously to a nolle prosequi, also requiring proof of innocence.

Decision

Davies J first examined the nature of the DPP's decision to proceed no further. After the Court of Criminal Appeal quashed the convictions and ordered retrials, the original indictment no longer existed in its prior form. A new bill of indictment would have been required to bring the matter to a fresh trial. The DPP's decision not to proceed was therefore equivalent to a refusal to find a new bill of indictment, which in legal effect constitutes the entry of a nolle prosequi.

On the question of whether a nolle prosequi requires the plaintiff to prove innocence, Davies J held himself bound by the High Court's decisions in Davis v Gell (1924) 35 CLR 275 and Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527. Those cases establish that, while a nolle prosequi does terminate proceedings favourably to a plaintiff for the purposes of a malicious prosecution claim, it leaves the question of innocence undecided. Unlike an acquittal or a refusal by the prosecution to find a bill of indictment, a nolle prosequi does not carry any implied finding of innocence. The plaintiff must therefore affirmatively prove her innocence on counts 1, 2, 5, 6 and 7.

On count 9, the court rejected the State's submission that the directed acquittal should be treated like a nolle prosequi merely because it was granted for discretionary reasons rather than on the merits. Davies J reasoned that the Court of Criminal Appeal had formally entered a verdict of acquittal, and the High Court in Smith had confirmed that the Davis v Gell principle applies only to a nolle prosequi and cannot be extended to other forms of termination. The plaintiff therefore does not need to prove her innocence on count 9.

Orders Made

The court answered the separately determined questions as follows:

  • Question A (counts 1, 2, 5, 6 and 7): Yes, the plaintiff must prove her innocence in relation to each of these counts.
  • Question B (count 9): No, the plaintiff does not need to prove her innocence in relation to this count.

Key Takeaways

  • A nolle prosequi terminates criminal proceedings favourably to a plaintiff for the purposes of a malicious prosecution claim, but does not carry any implied finding of innocence. The plaintiff must prove innocence as a separate element of the cause of action.

  • Where a Court of Criminal Appeal quashes convictions and orders retrials, and the DPP then elects not to proceed, the DPP's decision is legally equivalent to the entry of a nolle prosequi, rather than to an outright acquittal or a refusal to find a bill.

  • A directed acquittal entered by an appellate court, even one granted on discretionary grounds rather than on the merits of the charge, does not require the plaintiff in a subsequent malicious prosecution claim to prove innocence. The nolle prosequi rule from Davis v Gell is confined strictly to that form of termination.

  • The High Court's decisions in Davis v Gell and Commonwealth Life Assurance Society Ltd v Smith remain binding authority in New South Wales on the effect of a nolle prosequi in malicious prosecution proceedings, notwithstanding academic criticism of those decisions.

  • The answers to these threshold questions directly governed what evidence would be admissible and necessary at the substantive hearing of the malicious prosecution claim, illustrating the practical significance of resolving such procedural questions separately and in advance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 26, 35, 39, 59, 327, 474B, 474C
- Criminal Appeal Act 1912 (NSW), s 12(2)
- Director of Public Prosecutions Act 1986 (NSW), s 7
- Firearms and Dangerous Weapons Act 1973 (NSW), s 25(1)
- Criminal Code 1924 (Tas)

Cases
- A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
- Abrath v North Eastern Railway Co (1883) 11 QBD 440
- Balbhaddar Singh v Badry Sah (PC No. 66 of 1924)
- Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
- Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527
- Davis v Gell (1924) 35 CLR 275
- Director of Public Prosecutions South Australia v B (1998) 194 CLR 566
- Mann v Jacombe (1961) 78 WN (NSW) 635
- Miazga v Kvello Estate [2009] SCC 51; [2009] 3 SCR 339
- Noye v Robbins and Crimmins [2007] WASC 98; [2010] WASCA 83
- R v Catt (1993) 68 A Crim R 189
- Regina v Catt [2005] NSWCCA 279
- R v GKA (1998) 99 A Crim R 491
- R v Howard (1992) 29 NSWLR 242
- R v Janceski [2005] 64 NSWLR 10
- R v Murrell (2001) 123 A Crim R 54
- R v Nicholas (1989) 45 A Crim R 299
- R v Taylor [2003] NSWCCA 194
- R v Wylie, Howe and McGuire (1919) 83 JP 295