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Home | Blog | High Court overturns 91-Year old precedent

Beckett v State of New South Wales (2013) 248 CLR 432

Turner Freeman is representing Roseanne Beckett, who has sued the State of New South Wales for compensation for malicious prosecution. She has alleged that she was framed by ex-policeman Peter Thomas.

Compensation for malicious prosecution

In 1991 the plaintiff was convicted of several offences in the Supreme Court of New South Wales. She was sentenced to a term of imprisonment of twelve years and three months.

After an inquiry conducted by Acting Judge Davidson of the District Court, in 2004 the Court of Criminal Appeal acquitted the appellant on one count, upheld her conviction on two counts and quashed the convictions on five counts and ordered that a new trial for these counts take place.

In 2005 the Director of Public Prosecutions directed that there would be no further proceedings against the appellant on the charges for which the Court of Criminal Appeal ordered a new trial.

In 2008 the plaintiff sued the State for compensation for malicious prosecution.

To successfully bring a claim the plaintiff must prove four things:

(1) the prosecution was initiated by the defendant;

(2) the prosecution terminated favourably to the plaintiff;

(3) the defendant acted with malice in bringing or maintaining the prosecution; and

(4) the prosecution was brought or maintained without reasonable or probable cause.

The State sought to rely on a 91-year old legal precedent (Davis v Gell (1924) 35 CLR 275) to require that the plaintiff prove a fifth element, that the plaintiff was innocent of each charge.

This authority required that a person who was charged with a criminal offence in which the prosecution ended with a “nolle prosequi” (i.e. a discontinuance) was also required to prove that she was actually innocent of the charges in order to successfully receive compensation for malicious prosecution.

The plaintiff appealed to the High Court.

In the High Court proceedings we contended on behalf of the plaintiff that the correctness of Davis v Gell should be reconsidered and that, in line with all other terminations of proceedings, a nolle presequi should be considered a termination in favour of the plaintiff, without any condition.

The High Court agreed with the appellant’s submission that the entry of a nolle prosequi was a termination in the appellant’s favour for the purpose of an action in malicious prosecution and that the alleged guilt or innocence of the appellant was not relevant. Davis v Gell was overruled after 91 years as the law.

The significance of this decision was that the High Court ruled that Ms Beckett did not need to prove her innocence in order to successfully sue the State for malicious prosecution.

The case has returned to the Supreme Court and is currently awaiting judgment.

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