What is a Malicious Prosecution?

The man whose life was torn apart after being maliciously prosecuted for historical child sexual offences in an attempt to ruin his reputation and elicit information on the disappearance of three-year old William Tyrell has been awarded nearly $1.5 million in damages plus interest and legal costs.

The prosecution

Young William disappeared from Kendall on the Mid North Coast of New South Wales on 12 September 2014 and was later presumed dead.

In January 2015, New South Wales police officers conducted an extensive search of the home of washing machine repairer William Spedding in Bonny Hills – which is around 18 kilometres south of Port Macquarie and 20 kilometres from Kendall – draining his septic tank and digging parts of the surrounds, but found nothing linking him to the disappearance.

They nevertheless took to the media proclaiming that Mr Spedding was a paedophile and ‘a person of interest’ in William’s disappearance, proceeding to charge him with several historical sexual offences.

The bogus charges proceeded to trial in 2018 and Mr Spedding was found not guilty of all offences.

During the investigation of young William’s disappearance detectives engaged in criminal conduct including, but certainly not limited to, illegally recordings.

Lead detective Gary Jubelin was subsequently convicted over his crimes. He appealed his conviction but was unsuccessful. Despite his crimes, mainstream media channels and tabloid newspapers continue to present Jubelin as some sort of respectable crime-fighting figure, and he has regularly appeared on Channel Nine’s shows ’60 Minutes’ and ‘Under Investigation’ and its news reports, as well as news reports and current affairs shows of other channels.

The assertion that Mr Spedding was involved in William’s murder has never been supported by evidence– and the conduct of police in charging him with sexual offences to make him somehow ‘crack’ and implicate himself in William’s disappearance can only be described as an abuse of process.

No forensic or other evidence has ever been linked to Mr Spedding, despite intense surveillance and multiple searches.

In 2019, Spedding commenced civil proceedings against the State of New South Wales for the tort of malicious prosecution.

The case was heard before Justice Harrison of the Court’s Common Law Division on 26 to 29 April, 2 to 4 May and 17 August 2022, and his Honour’s judgment delivered on 1 December 2022.

It was a resounding victory for Mr Spedding, with the Court ultimately awarding him $1,484, 292 plus interest and ordering the State to pay his legal costs.

The judgment

The judgment was scathing of the police, noting they coached the complainants in the manufacture of incidents that did not exist, and stating that the charges brought as a result were “concocted and false and could not be supported”.

His Honour made the following findings on the assessment of loss:

In relation to non-economic loss:

“Mr Spedding was subjected to a long and painful ordeal. It never should have occurred. The allegations for which he was prosecuted were old and discredited. They were frail and notoriously so. Notwithstanding those facts, Mr Spedding’s experience left him distressed, confused, wrongly imprisoned and separated from his family. His release from custody, which I find to have been extremely distressing and painful, did not restore to him the family from which he had been so improperly removed. Nor has it recovered even now. He remained subject for three years to the ignominy of reporting to the police in a small community alive with suspicions about him.

Mr Spedding was the subject of a harsh and cynical strategy to further an unrelated investigation. It was never viable, nor was it proper. Mr Spedding remains to this day traumatised by the whole unnecessary ordeal. His pain continues. As a result of these things Mr Spedding finds it difficult to concentrate, his level of social activity remains severely attenuated, he feels isolated and socially uncomfortable and his enjoyment of life remains diminished.”

In relation to reputational damage:

“Mr Spedding’s reputation was comprehensively destroyed as the result of his arrest and prosecution on the historical sexual assault allegations. It is doubtful that it will ever be restored. For what it is worth, I take Inspector Jubelin to have accepted that fact. Mr Spedding had until the time of his arrest been living an unexceptionable existence in quiet circumstances in coastal New South Wales. He was never a man of means and wealth never found its way to him. His business as a washing machine repair man could hardly have been described as a path to enormous prosperity, but it depended upon his acceptance as an honest and reliable individual. That humble employment was somewhat ironically critical to his selection as a person of interest in the disappearance of William Tyrrell.”

In awarding aggravated damages:

“I consider that the State’s insistence that the notion of “insult” is not apt to include the effects upon Mr Spedding of “insults” directed at him by members of the public is too narrow and I do not accept it. A consequence of the inappropriate prosecution must be taken to include, among other things, the opprobrium and unfair treatment directed at him by members of the public as an obvious result of the commission of the tort. Mr Spedding’s experience with the patently rabid neighbour captured on video at his front door and the incident he related about the reaction he received when seeking pathology services speak loudly in support of an insidious level of vitriol directed towards him.”

In awarding exemplary damages:

“I also consider that Mr Spedding is entitled to… [exemplary damages] so as to punish the State for prosecuting him where there was no warrant for doing so and when the decision to do so was not merely the result of a well-intentioned but mistaken appreciation of the true facts. It is in my view difficult to imagine a more seriously improper tactic in the purported exercise of legitimate police powers than to arrest and charge a man in order to put pressure upon him in relation to an ongoing but unrelated investigation, and even then to persist with the prosecution long after the desired strategic advantage has patently evaporated. In a paraphrase of Inspector Jubelin’s published recollections, it was inevitable that Mr Spedding would be damaged but such was the price of his search for a killer. I reject that sentiment as illegitimate, wholly unacceptable and inappropriate. Its repetition should be disavowed and deterred in the strongest possible terms.”

Outside court

Mr Spedding stated the following outside the courthouse immediately after the decision:

“No amount of money will restore the life I enjoyed before this terrible nightmare”.

“I was prosecuted for crimes I did not commit, all in the hope that my prosecution would further the police investigation of me as a suspect in the disappearance of William Tyrell”.

“This type of conduct engaged in by the prosecuting authorities must be deterred”.

Indeed.

Whether the decision will in fact act as a deterrence to unethical police officers is questionable as, needless to say, the costs will be borne by the state’s taxpayers.

What is a malicious prosecution?

Malicious prosecution is a common law tort which creates liability for a misconduct by prosecuting bodies such as police and the Office of the Director of Public Prosecutions where a number of criteria are established on the balance of probabilities by the aggrieved person, who is known in our state as the plaintiff.

The courts have made clear that the following elements (or ingredients) must be proved before a malicious prosecution is established:

1. Proceedings were initiated or maintained

Proceedings were initiated or maintained against the plaintiff by the defendant; In general, only criminal prosecutions can form the basis of an action for malicious prosecution – civil proceedings do not normally apply.

Essentially, the plaintiff must show that police were prosecuting the case, rather than another body. The prosecutor is not limited to just the ‘informant’ (ie the officer in charge), but anyone responsible for initiating proceedings.

A claim can also be made against a person who made a complaint to police that was deliberately false, if proceedings were brought based upon that complaint (this would only be advantageous if the complainant has the means to pay damages, of course).

In some cases, it may have been reasonable for the prosecutor to initiate proceedings against the plaintiff, but not maintain them. For example, if further (exculpatory) evidence comes to light during the investigation and it is no longer reasonable to maintain the prosecution, yet they persisted in any event.

2. Proceedings were finalised

The proceedings were terminated (finalised) in favour of the plaintiff.

Any termination that does not result in conviction is favourable to the plaintiff for the purposes of civil action… “the magistrate may not commit for trial; the director may not find a bill of indictment; the direct may direct that no further proceedings be taken or the Attorney General may enter a nolle prosequi.”

To satisfy this element, it is simply necessary that no determination of guilt has been made against the plaintiff, and the proceedings have ended without such a determination.

It should be noted it has been held that where a charge had been dismissed, without conviction, pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999, this did not constitute a “termination of proceedings favourably to the plaintiff”. 

This was because the ultimate order had been preceded by a finding of guilt.

3. The prosecution was without reasonable and proper cause

That the defendant acted without reasonable and probable cause.

This is often the most difficult element to prove in a claim against a prosecuting authority, as it involves both an objective and subjective assessment all of the evidence upon which proceedings were initiated or maintained, and will vary heavily from case to case.

The material to be considered is not limited to admissible evidence, or the prosecution’s consideration of whether a defence will be available. 

It is, however, necessary for a prosecutor to make sufficient enquiries so as to inform himself or herself of the true state of the case.

As discussed in the case of A v New South Wales, there are several considerations in determining if a person had reasonable and probable cause for prosecuting another for an offence:

“a) the prosecutor must believe that the accused is probably guilty of the offence; 

b) this belief must be founded upon information in the possession of the prosecutor pointing to such guilty, not upon mere imagination or surmise;

c) the information, whether it consists of things observed by the prosecutor himself, or things told to him, must be believed by him to be true;

d) this belief must be based upon reasonable grounds;

e) the information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.

The absence of one or more of these factors can establish that there was not reasonable and probable cause in initiating proceedings, although the list should not be considered exhaustive.

An in depth analysis of the evidence that was behind the initiation of proceedings will be essential before bringing any suit for malicious prosecution, and

4. The conduct was malicious

The defendant, in initiating or maintaining the proceedings acted maliciously.In order to prove this element, the plaintiff must demonstrate that the defendant, in bringing the proceedings, was ‘acting for purposes other than a proper invocation of the criminal law.’

This can include cases where some bias of the prosecuting authority can be demonstrated, or where an absence of reasonable and probable cause can be used infer malice.

In Houda v New South Wales it was decided that a police officer had acted maliciously in bringing proceedings against a NSW solicitor where he knew that no offence had been committed, and the officer was acting out of spite after an altercation with Mr Houda that was provoked by police.

In A v State of New South Wales it was demonstrated that the defendant had initiated proceedings only because he had been pressured to do so by his superiors, rather than in the interests of justice.

It should be noted that the presence of malice alone will not be enough to establish a claim in malicious prosecution. It is essential that this element is accompanied by the absence of reasonable and probable cause.