Sharp v Biggs [1932] HCA 54

OF AUSTRALIA. 81

[HIGH COURT OF AUSTRALIA.]

SHARP . 5 : A " : . +. APPELLANT; Derenpant, AND REM a iy: ie PAP mete he en ng eos. RESPONDENT. » Praintirr,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Malicious Prosecution—Reasonable and probable cause for prosecution—Functions of H, ©. or A.

Judge and jury. 1932,

Ww Tn a proceeding by B. against S. for use and occupation from 6th February yr noun,

to 20th May 1928 of upstairs rooms in B.'s shop, B. in April 1931 swore 94 5, 4,

that S. was in occupation of the rooms during that period, that he had seen = ——

him and his boy going up and down stairs to and from the upstairs rooms, | S¥DNBEY,

and that sometimes they would have goods in a basket. 'BB. fixed the date ov. 21.

20th May 1928 by reference to a letter written by S. but he was mistaken, and Gavan Dufty

actually the facts to which he deposed had ceased by Ist March 1928, although (C32 Behe. after that date S, had gone at least once upstairs and had used the basement, and McTiernan,

8. laid an information against B. for perjury, charging him with swearing that

S. was in occupation of the rooms and that he saw S. and his assistant taking

goods from the rooms three or four times a day up to 20th May 1928, missing

possibly a day or two occasionally during that time. B. was committed for

trial but the Attorney-General refused to file a presentment. B. sued S. for

malicious prosecution. The following questions were left to the jury :—(1) Has

the plaintiff (B.) proved that he was innocent of the charge made against him ?

Answer: Yes. (2) Did the defendant (S.) or his assistant carry goods down-

stairs from the upstairs rooms during the months of March, April, or May, 1928 ?

Answer: No. (3) At the time the defendant laid the information against

the plaintiff, did he honestly believe that the plaintiff had committed perjury