Davis v Gell [1924] HCA 56

OF AUSTRALIA. 275

(HIGH COURT OF AUSTRALIA.)

, ' : - ' - Fi . APPELLANT ; DEFENDANT, t AND i Wa lt Sw. RESPONDENT. ' PLAINTIFF, ON APPEAL FROM THE SUPREME COURT OF ; VICTORIA. » Malicious Prosecution—Essentials of action—Innocence of plaintiff—Termination of H.C. or A. criminal proceedings in favour of plaintiff —Acquittal—Nolle prosequi—New trial. 1924,

i Held, by Isaacs A.C.J., Gavan Duffy and Starke JJ. that in an action for \fernourwe, malicious prosecution the plaintiff must prove his innocence, but the fact Qci, 3, 6, that on his trial a nolle prosequi was entered, although it establishes that the

proceedings terminated in his favour, does not establish his innocence. SyDNEy,

' Sey Tee Oot ace eek Ui, ik ix: ich ax abtion'e: verdict ©; OO 1?

of acquittal establishes the innocence of the plaintiff as well as that the lsaacs A.C.J,

proceedings terminated in his favour. re

'The plaintiff in an action for malicious prosecution had been prosecuted on acharge of maliciously killing certain animals belonging to the defendant, who informed the police that the animals had been poisoned by eating maize from a maize crib in his paddock and that he had seen the plaintiff under suspicious circumstances in the paddock near the crib the night before the poisoning. On the plaintiff pleading not guilty a nolle prosequi had been entered. At the trial of the action the jury were directed that they should assume that the plaintiff was innocent because the criminal proceedings had ended in his favour, 'and they found a verdict for the plaintiff.

Held, that a new trial should be had as the wrong direction might, in the circumstances, have led to a miscarriage of justice.

Decision of the Supreme Court of Victoria (Full Court): Gell v. Davis, (1924) V.L.R. 315; 45 A.L-T. 161, reversed.

H.C. or A. Apprat from the Supreme Court of Victoria.