A v State of New South Wales [2007] HCA 10

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

A APPELLANT

AND

STATE OF NEW SOUTH WALES & ANOR RESPONDENTS

A v State of New South Wales

[2007] HCA 10

21 March 2007

S59/2006

ORDER

1. Appeal allowed in part;

2. Vary paragraph 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 September 2005 by adding the words "with costs" after "dismissed";

3. Set aside paragraphs 2 to 7 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 September 2005 and, in their place, order that the cross-appeal be dismissed with costs; and

4. The respondents to pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation

D F Jackson QC with A P Stenmark SC and J C Sheller for the appellant (instructed by Greg Walsh & Co)

M G Sexton SC, Solicitor-General for the State of New South Wales with P J Saidi and J C Chapman for the first and second respondents (instructed by Crown Solicitor for New South Wales)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

A v State of New South Wales

Torts – Malicious prosecution – Whether prosecutor acted without reasonable and probable cause – Public rather than private prosecution – Applicant acquitted of offence charged – Prosecutor had no personal knowledge of the facts underlying the charge – Whether prosecutor did not honestly form the view that there was a proper case for prosecution or whether the prosecutor formed that view on an insufficient basis.

Torts – Malicious prosecution – Whether prosecutor acted maliciously – Whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law.