Recent Cases

State of New South Wales v Spedding [2023] NSWCA 180 (09 August 2023) (Bell CJ, Ward P and Adamson JA)


Catchwords:


TORTS — Malicious prosecution — Institution of proceedings — identification of prosecutors — distinction between institution and maintenance of proceedings — whether police officers can be prosecutors for the purposes of the tort after the Director of Public Prosecutions has taken over carriage of the prosecution — whether police officers maintained the prosecution after the Director of Public Prosecutions took over the proceeding

TORTS — Malicious prosecution — Absence of reasonable and probable cause — where proceedings commenced for dominant purpose of advancing police investigation of unrelated criminal matter — where many basic investigative tasks not completed prior to arrest and charging — where police had exculpatory material available to them which had not been read when criminal proceedings were instituted — whether actual knowledge of exculpatory material is required to demonstrate an absence of reasonable and probable cause

TORTS — Malicious prosecution — Malice — What constitutes — where proceedings commenced for dominant purpose of advancing police investigation of unrelated criminal matter — whether sufficient to demonstrate malice — whether actual knowledge of exculpatory material is required to demonstrate malice — where improper purpose of Police was not disclosed to the Office of the Director of Public Prosecutions — whether malice can be found on part of the Office of Director of Public Prosecutions

TORTS — Collateral abuse of process — Who may commit — where one police officer was listed as the prosecutor on the Court Attendance Notice — whether the tort can be committed by a police officer who is not a party to the criminal proceeding — whether this is material where State is vicariously liable for all police officers involved

TORTS — Collateral abuse of process — What constitutes — where it is accepted that the institution of criminal proceedings to advance an unrelated investigation is not a proper purpose — whether functions of police are confined to arrest, investigation and commencement of criminal proceedings — whether police nonetheless liable due to commencement of proceedings to advance an unrelated police investigation

TORTS — Misfeasance in public office — What constitutes — whether maintenance of criminal proceeding can be an exercise in public power

TORTS — Malicious prosecution — Damage — Damage to plaintiff’s reputation — where the respondent was already known as a suspect in unrelated investigation — where charges laid in order to advance that unrelated investigation — whether damage to reputation was caused by leaking of the respondent’s name as a suspect as opposed to by malicious prosecution — whether distinction can be drawn between the two causes