Getting Damages for Malicious Prosecutions in NSW

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If a person believes they have been the subject of unjustified criminal proceedings, they may have grounds to claim back their legal costs or even sue for malicious prosecution.

Claiming costs at the end of Local Court proceedings

Section 213 of the Criminal Procedure Act 1986 (NSW) allows the Local Court to award ‘just and reasonable’ costs to a defendant ‘if a matter is dismissed or withdrawn’.

This means that legal costs can be awarded if the prosecution withdraws the charges, or the proceedings are declared invalid or if the defendant wins the ultimate hearing.

However, section 214 limits the circumstances whereby costs may be awarded to where:

  • The investigation was conducted in an ‘unreasonable or improper manner’,
  • The proceedings were initiated ‘without reasonable cause or in bad faith’ or ‘conducted by the prosecutor in an improper manner’,
  • The prosecutor ‘unreasonably failed to investigate’ something that might suggest that the defendant was not guilty, or that proceedings should not have been commenced, or
  • There is another ‘exceptional circumstance’ relating to the conduct of the prosecutor which would justify an award for costs.

The time to make an application for costs is immediately upon the proceedings being withdrawn or dismissed; for example, upon a verdict of ‘not guilty’ being delivered or the charges being formally withdrawn by the prosecution in court.

Any letter that was written by the defence to the prosecution during the proceedings which drew attention to any of the listed matters, and / or asked for such matters to be rectified, can be instrumental in persuading the Magistrate to grant costs. Such letters are commonly known as ‘representations’.

Malicious Prosecution

While sections 213 and 214 are limited to Local Court proceedings, there is no such jurisdictional limit when it comes to suing the state for a malicious prosecution.

The Judicial Commission of NSW states that malicious prosecution is committed when a person or body wrongfully and with malice institutes or maintains legal proceedings against another.

It is not enough that someone was wrongly accused or that a person was wrongly convicted, it must be proven that the legal proceedings against the person were instituted with malice and without reasonable grounds.

Although it may be the conduct of an individual which brings an action of malicious prosecution, the suit will be filed more often than not against the state.

A case in point: Gordon Wood suing the state of NSW

Gordon Wood was convicted of killing his former girlfriend Caroline Byrne and spent three years in prison before his conviction was overturned in 2012. He is now bringing a case against the state of NSW on the grounds of malicious prosecution and false imprisonment.

In 2012, Justice Peter McClelland stated in the NSW Court of Appeal that the “verdict was unreasonable or cannot be supported having regard to the evidence”, and further stated “I am not satisfied that suicide can be excluded.”

Mr Wood alleges that prosecutors sought a conviction “regardless of his guilt or innocence.”

Mr Wood did not testify at his trial, but he reportedly alleges that vital evidence was withheld from the 1997 coronial inquest into Ms Byrne’s death. It is alleged that this included medical evidence of suicide.

He is also claiming that the prosecution made inappropriate submissions during his trial regarding his motives for the alleged killing, including about his relationship with his former boss, high-profile stockbroker Rene Rivkin.

Mr Wood is claiming damages for loss of earnings of between $8.9 million and $17.8 million.

The state of NSW rejects Mr Wood’s accusations of malice.

The elements of an action for malicious prosecution

Whether Mr Wood will be able to prove his case is yet to be determined, and the case is expected to commence in February next year.

Generally, in order for a person to succeed in the action of malicious prosecution, they must prove these five elements:

  1. That the prosecution proceedings were initiated by the defendant (the state) against them (the accused person).
  2. That the termination of the prosecution proceedings was in the accused person’s favour.
  3. That the defendant did not have ‘reasonable and probable cause’ to being the proceedings.
  4. That the defendant engaged in malice.
  5. That the accused person has suffered actual damage as a result of the malicious prosecution.


In the High Court case of Becket v New South Wales, it was ruled that the plaintiff no longer has to prove their innocence in the case relating to the malicious prosecution, only that the termination is in their favour.

This means that a trial does not have to be held to find the accused not guilty, that a person does not have to wait until another person is held to be guilty of the crime, and that any accused person wanting to bring proceedings will not have any undue delay in civil proceedings.

What is ‘reasonable and probable cause’?

Reasonable cause to bring a prosecution against a suspect is said to exist when:

  • The prosecutor believes that the accused is probably guilty of the offence.
  • The belief was founded upon information or evidence in the possession of the prosecutor and points to guilt of the accused.
  • The information, whether it consists of things observed by the prosecutor or things told to them by others, is believed by them to be true.
  • This belief is based upon reasonable grounds.
  • The information is possessed by the prosecutor and reasonably believed by them to be true and would justify a person of ordinary prudence to believe that the accused is probably guilty.

The 2007 High Court case of A v New South Wales highlighted certain limits, restraints and parameters of the notion of reasonable and probable cause.

According to the High Court, the question of reasonable and probable cause has both a subjective and objective element.

Therefore, the questions need to be asked are: “What did the prosecutor make of the material available to them and then what would a ‘reasonable person’ have thought they should have made of the evidence?”

If it can be proved on the balance of probabilities that either the prosecutor did not believe the prosecution was warranted or a reasonable person would not have thought the prosecution warranted, then the plaintiff will have established the no reasonable and probable cause element.

This element can be hard to prove and requires a close examination of the facts of each case.

The prosecutor in question only needs to prove that they had an honest and reasonable belief that there was a sufficient enough case to proceed with a prosecution against the accused.

Malice explained

In the case A v New South Wales, malice was held to often be a matter of inference.

The court said that malice requires evidence from which the court can infer that the prosecutor wished to pursue some illegitimate motive other than to bring an offender to justice.

Motives include:

  • Spite and ill will.
  • Pressure to bring a conviction for the crime.
  • An irrational obsession with the guilt of the plaintiff.
  • To silence the plaintiff in other cases.
  • To punish the plaintiff for evidence they had given against police officers in previous cases.
  • To prevent a shareholders’ meeting.

The presence of malice will not of itself be sufficient to establish the act of malicious prosecution, there must also be an absence of a reasonable and proper cause.

If you believe that proceedings against you have been initiated without proper cause, it is a good idea to speak with your criminal lawyer about the possibility of seeking legal costs at the finalisation of your case.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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