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Laws 301 Lecture Notes Malicious Prosection Notes

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This is an extract of our Laws 301 Lecture Notes Malicious Prosection document, which we sell as part of our Tort Law Notes collection written by the top tier of University Of Otago (Undergrad) students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Torts to the Person 2

Trespass to the person 2

Malicious Prosecution 2

Initiating a prosecution 2

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (HCA) 2

Watters v Pacific Delivery Services Ltd (1963) 42 DLR (2nd) 661 (SCC) 3

Identity of the prosecutor 3

Commercial Union Assurance Co of N.Z. Ltd v Lamont [1989] 3 NZLR 187 (CA) 3

Martin v Watson [1996] AC 74 (HL) 4

Favourable termination 5

Van Heeren v Cooper [1999] 1 NZLR 731 5

The Mental Elements 8

Maliciously Commenced Civil Proceedings 9

Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 (PC) 9

Torts to the Person

Trespass to the person

Malicious Prosecution

Lecture 19: (05/05/20)

Where the plaintiff is wrongfully prosecuted:

The foundation of the action [for malicious prosecution] lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

The plaintiff must prove that the proceedings instituted against them were:

  1. Malicious

  2. Without reasonable and probable cause

  3. That they terminated in the plaintiff’s favour (if that be possible)

  4. And that the plaintiff has suffered damage.

  • Note that the plaintiff in civil proceedings for malicious prosecution would have been the defendant in the criminal prosecution.

To found an action for damages for malicious prosecution based on criminal proceedings, the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. – Amin v Bannerjee [1947] AC 322 (PC) at 330 – 331

  • Proceedings do not need to go to a hearing – all that is needed is a wrongful setting of the law in motion (filing a charge).

In New Zealand, the filing of criminal charges is usually done by the Police, but there are other authorities which have the power to lay charges.

  • Resource Management Act allows Councils to file charges

  • The Fair Trading Act allows the Commerce Commission to file charges

  • A complainant who lays a false complaint to the Police or other authority could be treated as commencing the prosecution, even if they do not formally lay charges.

Initiating a prosecution

A defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution.

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (HCA)

Charges were laid by a police officer acting on information supplied by the defendant company:

  • Question for the Court – who was the appropriate defendant?

  • Court held that the defendant company had instigated the prosecution and had not genuinely believed the prosecution was justified.

Australian High Court held that no responsibility is incurred by someone who merely provides information that they do not disbelieve to the authorities, in the hope that a prosecution will result:

  • However, if the police’s discretion to charge is misled by false information or are procured to lay a charge, those who bring about the prosecution are responsible.

Watters v Pacific Delivery Services Ltd (1963) 42 DLR (2nd) 661 (SCC)

Complainant told an untrue story about someone stealing beer from him.

  • Police laid charges

  • Defendant was liable because he instigated the proceedings that resulted in arrest and did so maliciously without reasonable cause.

Identity of the prosecutor

Commercial Union Assurance Co of N.Z. Ltd v Lamont [1989] 3 NZLR 187 (CA)

Plaintiff made claim on insurance company after fire damaged building:

  • Police received reports from the fire service. They took the view that there could be something suspicious about this fire.

  • They asked the plaintiff’s insurer for their file, and the insurance company sent some materials

  • Police relied upon this material in prosecuting but lost.


Richardson J – a defendant who has procured the institution of criminal proceedings is responsible for the initiation of the prosecution.

  • Requires a close analysis of the circumstances

  • Difficult if defendant/complainant gave false information – the information must have influenced the police decision to prosecute.

Where the police have conducted an investigation and decide to prosecute:

  • When the complaint is laid, the police may act on that complaint and charge, but they may do some investigation and exercise discretion

  • Courts must proceed in caution where the police have investigated and prosecuted on material other than the complaint.

  • For a defendant to be liable for malicious prosecution, they must have procured the prosecution

  • The intervention of police could break the chain of causation, so the complaint is no longer effective

  • The onus is on plaintiff to prove this causation on balance of probabilities.

As a general rule, prosecution is brought when the information is laid:

  • Police will generally be treated as the prosecutor

  • But in some cases, the person who supplied the information may be regarded as the prosecutor.

  • Complainant may be regarded as prosecutor if they give police information which compels them to lay charges.

  • If they deliberately deceive police by supplying false information or withholding information.

When the police are laying charges, but this test is met, then look to the person that caused the police to act and ask whether they have acted maliciously.

Martin v Watson [1996] AC 74 (HL)

Plaintiff (man) and defendant (woman) were neighbours.

  • Long history of mutual antagonism between them

  • Defendant started to make accusations about the plaintiff – that he was climbing up a ladder and indecently exposing himself to her

  • She made several complaints over several weeks.

  • Police made a number of visits. The defendant complainant told the police she would be prepared to attend court and give evidence.

  • Eventually, the plaintiff was arrested and charged with indecent exposure.

At Court, the prosecutor offered no evidence, so the charges were dismissed – no hearing.

  • Plaintiff brought an action for malicious prosecution.


On appeal, the defendant challenged the allegation that she commenced the prosecution by complaining to the police.

  • Defendant argued that she could not have been the prosecutor as the Police laid the charges.

  • Furthermore, there is a policy argument that to find malicious prosecution would be to discourage members of the public from brining criminal activities to the notice of police.


The mere fact than an individual gives information to the police leading to their prosecution does not make them the prosecutor, even if they intend the prosecution.

  • However, if the defendant falsely and maliciously gives police information indicating a criminal offence, it is to be inferred that this person desires and intends a prosecution.

  • Connecting conduct of defendant with the requirement of intention for the tort.


The trial judge had concluded that the defendant had made a sequence of untruthful accusations:

  • When nothing seemed to be happening about the Police executing the warrant, defendant made further complaints of the same nature.

  • She was clearly determined that action should be taken by the police – her complaints made such an impression on the Constable so as to result in him applying for the warrant.

  • Defendant was actively instrumental in setting the prosecution in motion against the defendant.

In the circumstances… I find that the defendant was indeed instrumental in setting the prosecution in motion against the plaintiff

  • The defendant was the only person who could testify about the alleged indecent exposure.

  • It is impossible for the police to exercise any individual judgement – the person supplying the information is treated as the person commencing the prosecution.


The House of Lords agreed with the trial judge’s conclusion and reasoning and found that the defendant was the prosecutor for the purposes of a malicious prosecution.

Favourable termination

The Plaintiff’s criminal charges must be terminated in a way which do not implicate the plaintiff in civil proceedings for malicious prosecution:

  • The plaintiff in civil proceedings will be the person charged in the criminal proceedings.

  • Favourable termination – if a person charged with an offence is properly tried and acquitted (not guilty or innocent), there is no question of malicious prosecution

  • If the plaintiff pleads guilty to criminal charges, this is non favourable termination – they cannot bring a civil malicious prosecution case if they have already been found guilty or pled guilty.

Randerson J – rationale for favourable termination requirement is a need for avoiding duplication:

  • If someone is charged with burglary, police have facts they need to establish and Court will reach a decision based on those facts.

  • If that same person then commences civil proceedings in which they are not guilty in order to run malicious prosecution claim, Court will have to go over the same facts.

  • If the plaintiff has pled guilty or has been found guilty, they will not be allowed to claim malicious prosecution to avoid duplication.

There is also an issue of conflict – a civil court may come to a contradictory conclusion compared to the criminal court:

  • There is a public interest that there be an end to litigation – cannot relitigate something that has been determined by the Court.

  • Avoid inconsistencies, as they could bring judicial system into disrepute.

  • To allow a malicious prosecution without a prior favourable termination could lead to the original judgement being “blowed off by a side wind”.

What else can be challenged?

  • An acquittal in criminal proceedings is no bar to a malicious prosecution claim

Van Heeren v Cooper [1999] 1 NZLR 731

Cooper is the plaintiff, bringing a malicious prosecution claim against the defendant Van Heeren:

  • Defendant had complained to the police and was the ‘prosecutor’ in criminal court.

  • As a result of complaint, Cooper was charged with a firearms offence, demanding money with menace, criminal intimidation.

  • The case did not go to a hearing and there was no conviction or acquittal because a deal had been made with the Police.

  • As part of the deal, Cooper pleaded guilty to the firearms offence, and the demanding money with menace charge was withdrawn by the Police.

  • In relation to the intimidation charge, the plaintiff had to admit to police he was guilty and apologise to Van Heeren and pay small amount to charity – no hearing, charge was dismissed.


In relation to the charge which was withdrawn, the High Court held that the situation was analogous to a dismissal following a guilty plea:

  • There was no acknowledgement of guilt for the withdrawn charge – could be regarded as favourable termination.

  • In relation to the intimidation charge, plaintiff would be unable to show a ‘favourable termination’, so malicious prosecution could not proceed

  • There was an acceptance of guilt outside of the...

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