Beckett v The State of New South Wales [2011] NSWSC 818 | Case summary

(2) The effect of entering a nolle prosequi 43In Davis v Gell the trial judge on an action for malicious prosecution directed the jury that because a nolle prosequi had been entered in the criminal proceedings in favour of the Plaintiff the jury should assume that the Plaintiff was innocent. The correctness of that direction was the only issue on the appeal to the High Court (see at 279). 44Isaacs ACJ first discussed the elements of the tort of malicious prosecution. In respect of the element that the criminal proceedings must have terminated favourably to the Plaintiff, he said this (at 286): In Steward v. Gromett , which is a landmark in the development of the action, the principle was clearly established - obviously on the broadest ground of inherent justice - that, where a judicial determination of innocence was impossible by reason of the form of proceeding, the plaintiff was not bound to produce such a termination. It follows necessarily from the principles adverted to that a nolle prosequi entered by the prosecuting authority on its own responsibility and discretion creates a position in which an accused person, afterwards plaintiff in an action for malicious prosecution, may properly say the proceeding was not capable of a complete termination in his favour by way of acquittal. But though so far absolved, it does not follow that the termination by way of nolle prosequi in any way establishes innocence. "The effect of a nolle prosequi when obtained" ( Chitty's Criminal Law , vol. i., p. 480) "is to put the defendant without day, but it does not at all operate as an acquittal." (And see R. v. Mitchell ) Its evidentiary effect depends on other considerations, to which I shall later advert. 45A little further in his judgment he said this (at 292): Acquittal connotes (a) termination of the proceedings and (b) innocence of the accused. Nolle prosequi connotes the first only. This effect it must have on the civil action. But innocence in that case still remains to be proved in order to maintain the action and cannot be assumed. This is strongly exemplified in Bank of New South Wales v. Piper . 46Gavan Duffy J said (at 294): I agree with the other members of the Court in thinking that in an action for malicious prosecution the plaintiff must prove his innocence, and that proof that a nolle prosequi was entered on his trial does not entitle the jury to assume that the plaintiff was innocent. 47Starke J said (at 297): [The Plaintiff] may show, for instance, that the proceedings terminated in his favour by a nolle prosequi or by the ignoramus of a grand jury or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the Court or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case. ( Ignoramus of a grand jury is the present equivalent of the refusal of the Attorney-General or the DPP to find a bill of indictment.) 48In Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 the Plaintiff had been committed for trial on a charge of conspiracy with 3 other persons to cheat and defraud shareholders and policy holders of the Commonwealth Life Assurance (Amalgamated) Association. He was committed for trial by the Magistrate but the Attorney-General decided that no indictment should be filed (see at 532). The joint judgment set out (at 532) the issue for determination by the High Court as follows: At the trial of the action under consideration in this appeal the plaintiff insisted that he was entitled to lead evidence to establish affirmatively that he was innocent of the conspiracy with which he had been charged and for that purpose to prove many matters, such as what he had been informed or believed and what circumstances or alleged circumstances actuated his conduct, all of which would have been inadmissible if the issue of his guilt or innocence were out of the case. The defendant objected, and maintained that the question of the actual guilt or innocence of the plaintiff formed no part of the issues before the jury. The trial judge, on the authority of the judgments given in this court in Davis v. Gell , admitted the evidence. There can, we think, be no doubt that, if this course was erroneous, then, having regard to the nature of the evidence so admitted, the defendant is entitled to a new trial. The contention that no substantial wrong or miscarriage would be occasioned by the error appears to us to be quite untenable. The first question for consideration, therefore, is whether the plaintiff's guilt or innocence of the charge was in issue. The affirmative of this question is supported on the part of the plaintiff on the ground that his innocence is an element essential to his cause of action and also a matter going to damages. These are, of course, separate reasons for throwing open before the jury in the civil proceeding the question with which the criminal proceeding was concerned. We shall deal first with the question whether the plaintiff's guilt or innocence is an issue going to the cause of action. 49The joint judgment then discussed the statement of Bowen LJ in Abrath v North Eastern Railway Co. (1883) 11 QBD 440 at 455 that in an action for malicious prosecution the plaintiff has to prove that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made. They then discussed what had been said in Davis v Gell , saying (at 533-534): After an elaborate examination of the decided cases by Isaacs J. and by Starke J., those learned judges arrived at conclusions which appear to us to be substantially the same and in which, as we understand his judgment, Gavan Duffy J. concurred. Their Honours considered that in every action of malicious prosecution the plaintiff must show that the charge was "unfounded," and that meant that he must show his innocence. But if he had been tried and acquitted, this would establish his innocence for the purpose of an action for malicious prosecution. It would also show that the criminal proceedings had terminated and thus satisfy another requirement indispensable to the maintenance of the civil action. That requirement might be satisfied by other forms of termination short of acquittal, but they would not establish innocence, at all events conclusively, Starke J. stated the position as follows:- "He may show, for instance, that the proceedings terminated in his favour by a nolle prosequi , or by the ignoramus of a grand jury, or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the court, or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case. It is unnecessary, and indeed undesirable, in this case, to discuss what (if any) presumptions in favour of innocence, or other evidence would satisfy the burden". 50The joint judgment then continued (at 534-535): In expressing the view that the dismissal by a magistrate of an information for an indictable offence or the ignoring of a bill of indictment by a grand jury was insufficient to exclude or conclude the question of the plaintiff's guilt or innocence of the charge, the court went beyond the particular case which, as we have already said, was one where after the plaintiff had been put on his trial a nolle prosequi was entered on behalf of the Crown. Now the question whether a nolle prosequi is a sufficient termination of the criminal proceedings to enable the accused to maintain an action of malicious prosecution, assuming that he can establish the other elements in the cause of action, is one which has never been settled by English authority. A nolle prosequi does no more than bring the trial to an end. The accused may again be indicted or fresh process may be awarded in the same indictment and the prisoner again put on his trial. ... The development by an action on the case in the nature of conspiracy of the remedy for malicious prosecution was perhaps somewhat late and relatively slow. The elements of the cause of action did not become definite and certain before the nineteenth century and it is evident that there has survived to the present time a difficulty in the application of principles, otherwise settled, to the special case of proceedings brought to an end by nolle prosequi . The view adopted in Davis v. Gell covered that difficulty and solved it by leaving the question of innocence or guilt open for inquiry in the civil proceedings. But the opinion expressed by the members of the court that proceedings which ended in favour of the accused by a refusal of the magistrates to commit fell under the same rule was unnecessary to the decision, and, in view of the unreported case in the Privy Council, Balbhaddar Singh v. Badri Sah (No. 66 of 1924), it cannot now be followed. 51A little further on the joint judgment said this (at 541-543): As Isaacs J. explains in Davis v. Gell , Bowen L.J. did not mean that innocence must be proved and acquittal also. He meant that a decision in favour of the accused must be proved, which decision thus established innocence. When he said that the plaintiff must prove first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made, he used words which cover discharge by a magistrate, the ignoring of a bill of indictment and a judgment of acquittal after a verdict of not guilty. He appears to us to have meant no more than is meant by the statement of Byles J. in Basebe v. Matthews which we have quoted. ... Unless the termination of the criminal proceedings has been by nolle prosequi , a case which is covered by the decision of Davis v. Gell , the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff. The plaintiff must prove that the prosecution terminated in his favour. He must prove that there was no reasonable and probable cause for the prosecution. But he need not prove that in truth he was innocent of the charge, and it is not open to the defendant to attempt to prove as an answer to the action that in truth he was guilty, notwithstanding the termination of the criminal proceedings in his favour. ... Except in the case of a nolle prosequi covered by the decision in Davis v. Gell , we are of opinion that the guilt or innocence of the plaintiff is not an issue going to the cause of action in malicious prosecution. The present case is not one where the proceedings were terminated by the entry of a nolle prosequi . They ended by the refusal of the Attorney-General to file an indictment. Under the law of New South Wales there is no grand jury, and the Attorney-General discharges a duty analogous to or replacing that which, under the common law, was performed by a grand jury. See sec. 5 of 9 Geo. IV. c. 83; Crimes Act 1900, sec. 572, and Justices Act 1902-1931 N.S.W., secs. 39, 41 (6) and 42, and R. v. McKay , to which Rich J. has referred us. When an accused person is committed for trial, it is for the Attorney-General to consider whether the accused should be put on his trial and for what precise offence, and this he does by filing or refusing to file an indictment. This is an entirely different function from that of entering a nolle prosequi upon an indictment after it has been filed, which does no more than non. pros. the indictment. The decision in Davis v. Gell was upon the effect of a termination by the latter process and both on principle and upon the authority of the decision of the Privy Council in Balbhaddar Singh v. Badri Sah it cannot be extended further. ( emphasis added ) 52This last paragraph contains the important distinction to which I have made reference earlier. 53The Plaintiff submits that the jurisprudence contained in Davis v Gell has now been superseded, that it does not represent the present state of the law, and that I should not follow it. The Defendant points to what was said more recently by the High Court in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 in the plurality judgment at [1]: This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause. 54The Plaintiff submits that the enunciation of those elements of the tort shows that the issue of the innocence of the Plaintiff is not an element of the tort. The Plaintiff points also in that regard to the decision of the Supreme Court of Canada in Miazga v Kvello Estate [2009] SCC 51; [2009] 3 SCR 339 at [3]: To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect. 55I do not think that anything said in A v State of New South Wales casts any light on the present issue. That was a case, as the joint judgment makes clear at [2], which was concerned with the third and fourth elements of the tort which the Court identified. So, too, was Miazga. 56Further, neither Davis v Gell nor Smith was referred to in A v State of New South Wales . In any event, the submission with regard to Davis v Gell seems to overlook the approval given to what it decided in respect of a nolle prosequi in Smith , even though statements made in it going beyond that point were seemingly disapproved. 57How the innocence or otherwise of the Plaintiff fits into the elements of the tort was comprehensively explained in Smith in the passages that I have set out earlier. It forms part of the element of the proceedings terminating in favour of the Plaintiff. The acquittal, the refusal to commit for trial, or the refusal of the Attorney-General to find a bill of indictment, proves the innocence of the Plaintiff. Because the filing of a nolle prosequi is not a final determination of the indictment it does not determine the innocence of the Plaintiff. 58The Plaintiff submitted that Smith was a difficult case to understand because it was not clear how the prosecution was terminated. Reference was made to an associated case of Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343. That was a claim for malicious prosecution by a co-accused with Smith. Mr Blackett SC for the Plaintiff drew my attention to the portion in the judgment of Evatt and McTiernan JJ (at 399) where it was suggested that the prosecution came to an end by the filing of a nolle prosequi . Further, the summary of the facts under the headnote in Smith make a similar statement. However, it seems clear from the judgment in Smith itself that the proceedings came to an end by the Attorney-General deciding not to file an indictment (see at 532 and 543). 59The Plaintiff submits that the decision of the Full Court of this Court in Mann v Jacombe (1961) 78 WN (NSW) 635 is inconsistent with Davis , and that I should follow Mann v Jacombe in preference to Davis . 60The judgment in that case was very succinct with the essence of the decision on the issue in dispute being found in the first two of four paragraphs as follows: The defendant, Jacombe, who is being sued by the plaintiff, Mann, for alleged injury suffered through Jacombe's issuing criminal proceedings against him, demurred to each of the four counts of the plaintiff's declaration. He submitted that the declaration does not allege the termination of the proceedings referred to in each count in the plaintiff's favour, and that the entry of a nolle prosequi is not a termination of proceedings in favour of the defendant (Mann) in the criminal case. All that need be said on the point is to refer to the decision in 1891 of the Full Court of New South Wales in Gilchrist v. Gardner (1891), 12 L.R. (N.S.W.) 184, from which it appears that the balance of the decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution. See also Commonwealth Life Assurance Society Ltd. v. Smith (1938), 59 G.L.R. 527; and cf. Davis v. Gell (1924), 35 C.L.R. 275. In the result, the objection to the declaration by the defendant fails in respect of each count. 61It does not seem to me that Mann v Jacombe is inconsistent with Davis . Mann v Jacombe says nothing about the need of a plaintiff to prove his or her innocence. It dealt simply with the question of whether the entry of a nolle prosequi was a termination of proceedings in favour of the plaintiff. Indeed, in the passage from the judgment of Starke J (which I have set out at para 47 above) he expressly says that the Plaintiff may show that the proceedings terminated in his favour by a nolle prosequi but then goes on to say that proof of that did not establish the innocence of the Plaintiff. That view was reaffirmed in Smith in the passage that I have set out in para 51 above. In any event, the question I am determining has as its introduction the words "accepting that the proceedings terminated in favour of the Plaintiff". 62Two other decisions fortify me in the conclusion to which I have come in relation to the effect of the filing of a nolle prosequi. In Skrijel v Mengler [2003] VSC 270 Nettle J at [223] set out a passage from Fleming, The Law of Torts (LBC, 9 th Ed, 1998) at 679 dealing with the element of favourable termination in favour of the plaintiff, where the following appears: Even the mere discontinuance of a prosecution or the entry of a nolle prosequi after an indictment had once been filed may now, despite some earlier doubts, be regarded as in every way sufficient. 63Nettle J went on to say: [224] It seems to me, however, that the law in this country is not so simple. In Davis v Gell a majority of the High Court held that a nolle prosequi was not enough to establish that the proceeding had terminated favourably to the plaintiff. The plaintiff had also to prove that he was innocent of the offence with which he was charged. Flemming (sic) says that the decision in Davis v Gell may safely be discounted in light of Commonwealth Life Assurance v Smith , and that the decision in Mann v Jacombe establishes that the entry of a nolle prosequi after an indictment has been filed is in every way sufficient. I do not see how that can be correct. [225] Davis v Gell was a case in which a nolle prosequi was entered after the plaintiff had been committed to stand trial and had pleaded not guilty to the indictment. The High Court held by majority that in an action for malicious prosecution the plaintiff had to prove his innocence. The nolle prosequi established that the proceedings were terminated in his favour but that did not establish his innocence. [226] Commonwealth Life Assurance v Smith was not concerned with a nolle prosequi . The Court was concerned with the attorney general's refusal to file an indictment, and the majority held that: " Unless the termination of the criminal proceedings has been by nolle prosequi, a case which is covered by Davis v Gell , the cause of action in malicious prosecution does not depend upon the actual innocence of the plaintiff." (My Emphasis). As I read that decision it expressly preserves the effect of Davis v Gell in its application to cases of nolle prosequi . [227] That being so, I do not understand how any decision other than another decision of the High Court could be thought to alter the position. Whatever the depth of learning in the decision in Mann v Jacombe may have been it could not have the effect of altering a decision of the High Court. Until the High Court says otherwise, the law in relation to nolle prosequi remains as in Davis v Gell . [228] Moreover, it does not appear to me that the court in Mann v Jacombe did purport to decide anything contrary to Davis v Gell . Mann v Jacombe was about pre Judicature Act pleading in New South Wales. The point at issue was whether the plaintiff against whom the criminal proceeding was non pros had to plead innocence. It was held that he did not. The court said only that: "...it appears that the balance of decisions in America, as well as in Australia, is to the effect that a nolle prosequi is a sufficient ending of the prosecution." [229] Perhaps Mann v Jacombe says something inferentially about what the plaintiff would later have to prove at trial. But I do not think it has to be taken that way. The decision in Davis v Gell was that it was necessary for the plaintiff to prove his innocence, not that he had to plead it, and as Starke J noted in Davis v Gell that had long been the law: "But it is 'not necessary in an action for malicious prosecution that the plaintiff should allege or prove such an acquittal, for it may be brought under circumstances which preclude the possibility of such and acquittal' (Selwyn's Nisi Prius , 13th ed, Vol II, p105). He may show, for instance; that the proceedings terminated in his favour by a nolle prosequi or by the ignoramus of a grand jury or by the refusal of a justice to commit for trial, or by some want of jurisdiction in the Court or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case." I see no necessary inconsistency as between that and what was held in Mann v Jacombe . [230] In the course of final addresses the first and third defendants provided me with references to a number of American authorities on the question of nolle prosequi in the law relating to malicious prosecution and it was submitted on the basis of those authorities that, despite the decision in Davis v Gell , a nolle prosequi is only to be regarded as a favourable termination of the criminal proceeding if the reasons stated for the nolle are "consistent with the innocence of the accused" rather than for "procedural or technical defect". For the reasons already given I do not consider that it is open to me to adopt that course. I regard myself as bound by Davis v Gell . 64With great respect to Nettle J, I do not agree with his Honour's statement that the point at issue in Mann v Jacombe was whether the Plaintiff had to plead innocence. Nothing in the short judgment suggests that that is so. The issue was, as the first paragraph of the judgment makes clear, that the declaration did not allege the termination of the proceedings referred to in each count in the Plaintiff's favour, and that the entry of a nolle prosequi was not a termination of the proceedings in favour of the Plaintiff. I note also that the passage from Starke J's judgment which he quoted was disapproved in Smith except to the extent that it referred to a nolle prosequi . 65However, I respectfully agree with Nettle J's conclusion that Mann v Jacombe is not consistent with Davis v Gell and, like Nettle J, I am of the opinion that until the High Court says otherwise the law in relation to nolle prosequi and the tort of malicious prosecution remains as in Davis v Gell , and I would add, as approved in Smith . 66In Noye v Robbins and Crimmins [2007] WASC 98 Heenan J said: [238] What, then, is the significance in entering a nolle prosequi for an accused person who subsequently brings an action for malicious prosecution against the person or persons who originally instituted or instigated the charges? Plainly, such an accused person is powerless to achieve a more favourable outcome. He or she cannot compel, even if they wished to do so, the trial to proceed. Still less, can a judgment, after a verdict by a jury or by a Judge alone, be entered in the hope that the accused would be vindicated by an acquittal. Such a person can do nothing more than accept the termination of the proceedings as a demonstration that the person or authority who originally had the responsibility of proving the charge has decided not to attempt that task. [239] Both defendants in the present action originally submitted that the entry of the nolle prosequi on the indictments presented against Noye did not constitute a favourable termination of the proceedings and that, consequently, these actions must fail because of the inability of Noye to establish that those proceedings terminated in his favour. However, counsel for Inspector Robbins abandoned that point in final submissions (see written submissions par 55). For this proposition the defendants had relied upon Davis v Gell (supra); and Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; and the very recent discussion of those decisions by Nettle J in Skrijel v Mengler (supra) which distinguished the later decision, apparently to contrary effect, of the Supreme Court of New South Wales in Mann v Jacombe (supra). [240] In Davis v Gell (supra), the court held that in an action for malicious prosecution the plaintiff must prove his innocence. The fact that a nolle prosequi was entered at his trial, although it establishes that the proceedings terminated in the plaintiff's favour, does not establish the plaintiff's innocence, whereas a verdict of acquittal does establish innocence as well as demonstrate that the proceedings terminated in favour of the accused. In Commonwealth Life Assurance Society Ltd v Smith (supra), an action for malicious prosecution was brought following a charge of conspiracy made against the plaintiff in respect of which the Attorney General, after the plaintiff had been committed for trial, had declined to file any indictment. There was no nolle prosequi because there had never been an indictment. At 543, Rich, Dixon, Evatt and McTiernan JJ said: Except in the case of a nolle prosequi covered by the decision in Davis v Gell [supra], we are of opinion that the guilt or innocence of the plaintiff is not an issue going to the cause of action in malicious prosecution. and, further, at 545: For the reasons already given, the basis of the action puts out of consideration any question of actual guilt. The failure of the proceedings brought by the defendant, the absence of any reasonable cause and malice are the grounds. and, at 544: In other words, for the purpose of malicious prosecution, the law should consistently treat the question as disposed of in the criminal proceedings, the propriety of the conclusion of which ought not to be canvassed. This has left a controversy, and a conflict in subsequent decisions below the level of the High Court, about whether or not the filing of a nolle prosequi is a sufficient basis for maintaining an action for malicious prosecution and, if so, whether the plaintiff must additionally prove that he is innocent of the charges laid. The older authorities, and the controversy as it then stood, were discussed in detail by a helpful article by Donovan G P, " The Effect of a Nolle Prosequi in Relation to the Action for Malicious Prosecutio n" (1939) 12 ALJ 457; but there have been significant other decisions since then. [241] I consider that Davis v Gell (supra) demonstrates that, in any action for malicious prosecution, the plaintiff must establish the falsity of the charge complained of and must do so by showing his innocence. In cases where the plaintiff was acquitted after trial (whether on facts or because of any technical defect or inadequacy in the indictment or the charge), that acquittal is to be treated as the establishment of innocence. However, without such an acquittal, because a nolle prosequi was filed, that is not conclusive evidence of innocence and it is still for the plaintiff to prove that by other means in the subsequent civil action. By contrast, in Commonwealth Life Assurance Society Ltd v Smith (supra), the court held that it was not necessary for the plaintiff to prove innocence of the charges brought against him or her. Nevertheless, it did not overrule or reject the decision in Davis v Gell (supra) that in a case involving the filing of a nolle prosequi it remained for the plaintiff to establish his innocence by some additional means, leaving the issue of guilt or innocence open for inquiry in an action for malicious prosecution brought after the filing of a nolle prosequi . An obvious point of difficulty emerging from Smith's case (supra) is that if the entry of a nolle prosequi is an insufficient termination of proceedings for the purposes of an action for malicious prosecution, then to allow affirmative proof of innocence in the civil action to supply that deficiency is to proceed upon the assumption that the rule requiring favourable termination of criminal proceedings requires proof of the plaintiff's innocence - a proposition inconsistent with the rejection of the relevance of guilt or innocence of the plaintiff in Smith's case (supra) itself. The inconsistency becomes apparent when one considers the previously long accepted view that the importance of the termination in the plaintiff's favour is not that he or she is innocent but that he or she has not been convicted: see Salmon and Heuston on the Law of Torts , (2000) 20th ed (1992) at 412; Clerk and Lindsell on Torts, 18th ed [16]-[19]. [242] In Smith's case (supra) the court referred to the old decision of Goddard v Smith (1704) 6 Mod Rep 261; (1704) 87 ER 1007, and concluded that it did not support the proposition that an action for malicious prosecution could not be brought following a nolle prosequi ; and was some authority for the proposition that the effect of the nolle prosequi may not be to discharge any further prosecution upon an indictment, but simply to put off the defendant sine die, with the possibility that a new process might issue upon an offence. From this it can be concluded that the entry of a nolle prosequi constitutes as much of a favourable termination as, from their nature, the criminal proceedings were capable of producing in the events which happened; and that it terminates the immediate indictment and must therefore be regarded as putting an end to that particular prosecution without foreclosing the possibility of another. This is because the procedure adopted by the prosecution precludes the possibility of a judicial determination, so that it would be unjust that the plaintiff should be prevented from bringing an action for malicious prosecution - see Steward v Gromett (1859) 141 ER 788, cited in Davis v Gell (supra) by Isaacs ACJ at 286 and, by observations to similar effect, by Starke J at 297. [243] Furthermore, the law treats the termination of criminal proceedings because of a defect in the indictment or because of want of jurisdiction of the court as sufficient to justify an action for malicious prosecution even though such cases will usually be as, if not more, equivocal of the innocence of the accused than a discharge after a nolle prosequi . If, as Smith' s case (supra) has held, in all instances but discharge following a nolle prosequi , in the subsequent action for malicious prosecution the actual guilt or innocence of the plaintiff is an irrelevant issue, that would appear to be because the action for malicious prosecution requires the plaintiff to establish that the original prosecutor did not have reasonable and probable cause for bringing the charge. Conviction of the person charged after trial (not set aside on appeal) will, of necessity, render proof of the absence of reasonable and probable cause impossible. However, the action for malicious prosecution will still lie following the discharge of the accused after a successful appeal following a conviction at trial because, in that case, the proceedings have terminated in the plaintiff's favour. Although, in such a situation, it might be expected to be difficult to establish, as a fact, the absence of probable and reasonable cause for laying the charge. [244] In Mann v Jacombe (supra), Evatt CJ, Herron and Sugerman JJ decided that the entry of a nolle prosequi constituted sufficient favourable termination of proceedings to maintain an action for malicious prosecution. The case was decided upon a demurrer which cited, and purported to apply, both the decisions in Smith's case (supra) and Davis v Gell (supra). Similarly, in Earnshaw v Loy (No 1) [1959] VR 248 at 249, Sholl J said, of Smith's case: That case and other cases now appear to establish clearly that, except where there is a nolle prosequi, the favourable determination of the criminal proceedings cannot be controverted in the subsequent civil action, at any rate as a separate issue. [245] In Skrijel v Mengler (supra) at [227], Nettle J referred to the express observation of the decision in Davis v Gell in Mann v Jacombe and then said: Whatever the depth of learning in the decision in Mann v Jacombe may have been it could not have the effect of altering a decision of the High Court. Until the High Court says otherwise, the law in relation to nolle prosequi remains as in Davis v Gell. [Citations omitted] Nettle J then went on to distinguish Mann v Jacombe as being concerned with the niceties of pre- Judicature Act pleading in New South Wales, where it was only necessary for the plaintiff to prove his innocence at trial and not to plead it. His Honour then referred to American authorities which had held that a nolle prosequi should only be regarded as a favourable termination of the criminal proceedings if the reasons given for the nolle were consistent with the innocence of the accused, rather than for a procedural or technical defect. Her (sic) Honour did not adopt that approach. [246] While, for reasons of principle, I am disposed to favour the approach taken by the Full Court of the Supreme Court of New South Wales in Mann v Jacombe (supra), I am mindful of the need to conform strictly with the binding authority of the High Court and, therefore, with Davis v Gell and Smith's case (supra), to decide that proof of the filing of a nolle prosequi is insufficient, by itself, to establish the termination of the criminal proceedings in the plaintiff's favour. Therefore, I need to consider whether or not there is other evidence which, taken in combination with the filing of the nolle prosequi , proves, on the balance of probabilities, the innocence of the plaintiff which, otherwise would be assumed from a verdict of acquittal. 67The issue concerning nolle prosequi and the innocence of the Plaintiff were not issues on the appeal from this decision: Noye v Robbins and Crimmins [2010] WASCA 83. 68I have read the very interesting article (referred to in Noye v Robbins) by G P Donovan at 12 ALJ 457 discussing the correctness or otherwise of Davis v Gell . Although a number of valid points are made about the effect of a nolle prosequi generally and in relation to the tort of malicious prosecution, those are matters which would ultimately need to be put to the High Court if ever an appropriate case reaches that Court. I consider myself bound to apply the law as enunciated in Davis v Gell as approved and modified in Smith . That law is that although the entry of a nolle prosequi will not mean that the proceedings have not terminated favourably to the Plaintiff, it leaves the issue of innocence of the Plaintiff undecided in a way that other forms of termination of the criminal proceedings, including the refusal or determination of the Attorney-General or DPP not to find a bill of indictment, do not. 69The result is, in my opinion, that a nolle prosequi has been entered in relation to the criminal proceedings against the Plaintiff, but that means that the Plaintiff must prove her innocence of the charges in the present proceedings in relation to counts 1, 2, 5, 6 and 7.

Beckett v The State of New South Wales

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