Citation: Melmeth v State of New South Wales [2021] NSWDC 28
Court: District Court of New South Wales
Date: 26 February 2021
Judge: Neilson DCJ
Background
The plaintiff was charged in May 2015 with wounding a man with intent to cause grievous bodily harm and aggravated kidnapping, following an incident at her home. The alleged victim claimed he was detained for nearly three hours and repeatedly stabbed, with the plaintiff assisting the attacker. The plaintiff was arrested, refused bail, and remained in custody for almost six months before the Supreme Court granted bail. She was eventually committed for trial.
The first trial listing in 2016 was aborted when the alleged victim failed to attend pursuant to a subpoena. A jury trial proceeded in April 2017. At the close of the Crown case, the Crown Prosecutor offered no further evidence on the wounding charge, and the jury returned a not guilty verdict on the kidnapping charge. The plaintiff was subsequently granted a certificate under the Costs in Criminal Cases Act 1968.
The plaintiff then brought a civil claim for damages for malicious prosecution against the State of New South Wales, identifying two individuals as the alleged malicious prosecutors: the detective who charged her (referred to as DSC Green), and the Crown Prosecutor who conducted the 2017 trial (referred to as Mr Costello). The State conceded vicarious liability under the Law Reform (Vicarious Liability) Act 1983 if the tort were made out.
Legal Issues
- Whether DSC Green remained a "prosecutor" for the purposes of the tort after the Director of Public Prosecutions took over the proceedings
- Whether Mr Costello, briefed only to conduct the trial and not to find a bill of indictment, could be a "prosecutor" capable of being liable for the tort
- Whether either DSC Green or Mr Costello acted with malice, meaning for an improper purpose
- Whether either DSC Green or Mr Costello lacked reasonable and probable cause to prosecute the plaintiff
- The applicable principles governing criminal complicity in the context of the underlying facts
Decision
On the question of who qualified as a "prosecutor," the court held that DSC Green was the prosecutor until the DPP took over the proceedings, and that his potential liability was limited to that period. The court further held that Mr Costello, despite being briefed only to conduct the trial rather than to initiate it, could in principle be held liable for the tort if he had acted maliciously and without reasonable and probable cause. This extended the scope of who may constitute a "prosecutor" for the purposes of a malicious prosecution claim.
On the element of malice, the court found that neither DSC Green nor Mr Costello acted for an improper purpose. Malice in this context requires more than mere negligence or error of judgment; it requires a prosecution pursued for a purpose other than bringing an offender to justice. The court was not satisfied that either man crossed that threshold.
On reasonable and probable cause, the court found that both DSC Green and Mr Costello honestly believed in the plaintiff's guilt, and that each had objectively reasonable grounds for that belief at the relevant time. The acquittal of the plaintiff at trial did not, of itself, establish an absence of reasonable and probable cause at the time the prosecution was commenced or continued.
Because the plaintiff failed to establish malice and failed to establish an absence of reasonable and probable cause, the claim in malicious prosecution was dismissed. The court did, however, indicate what damages it would have awarded had the tort been made out: $70,000 compensatory damages attributable to DSC Green's conduct, $35,000 attributable to Mr Costello's conduct, and $25,000 in exemplary damages if the entire prosecution had been malicious from the outset.
Orders Made
- Verdict and judgment for the defendant against the plaintiff
- The plaintiff is ordered to pay the defendant's costs (unless a party applies otherwise at the time of publication)
Key Takeaways
- A Crown Prosecutor briefed only to conduct a trial, and not to find a bill of indictment, may nonetheless qualify as a "prosecutor" for the purposes of the tort of malicious prosecution if that prosecutor acts maliciously and without reasonable and probable cause.
- The District Court confirmed that the officer in charge of an investigation ceases to be the "prosecutor" once the DPP takes over the proceedings, limiting any potential liability to the period before that handover.
- An acquittal at trial does not, without more, establish that the prosecution lacked reasonable and probable cause. The relevant question is whether the prosecutor honestly believed in guilt and had objectively reasonable grounds for that belief at the time.
- Malice requires proof that the prosecution was pursued for a purpose other than bringing an alleged offender to justice. Negligence, overzealousness, or poor judgment in continuing a prosecution does not satisfy this element.
- Where a plaintiff fails to establish both malice and absence of reasonable and probable cause, the malicious prosecution claim fails even if the criminal proceedings ended in the plaintiff's favour and a costs certificate was granted.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 86(2)
- Costs in Criminal Cases Act 1968 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crown Prosecutors Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Law Reform (Vicarious Liability) Act 1983 (NSW)
Cases:
- A v NSW [2007] HCA 10; (2007) 230 CLR 500
- Beckett v NSW [2013] HCA 17
- Coleman v Buckingham's Ltd (1963) 63 SR (NSW) 171
- 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) 33 CLR 275
- Fred Saad & Ors v State of New South Wales [2016] NSWSC 1247
- Gibb-Smith v NSW [2018] NSWDC 204
- Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218
- Martin v Watson [1996] AC 74
- NSW v Abed [2014] NSWCA 419
- Sahede v Bischoff [2015] NSWCA 418
- Wood v NSW [2018] NSWSC 1247
- Zreika v NSW [2012] NSWCA 37