Gordon Wood V The State of New South Wales – Malicious Prosecution.

Gordon Wood V The State of New South Wales – Malicious Prosecution.

Last Friday, Justice Elizabeth Fullerton handed down her decision in Gordon Wood’s case against the state of NSW for malicious prosecution. Mr Wood’s conviction for murder had been overturned in 2012 by the NSW Court of Appeal. Justice Fullerton concluded that although the state’s former top prosecutor Mark Tedeschi, QC, had a “flawed approach” in his prosecution of Mr Wood, she was not persuaded that he acted maliciously:

…Whatever else Mr Tedeschi’s attitude to the prosecution of the plaintiff may reveal about his competence as a barrister or his capacity generally to abide by the Bar Rules, I am not persuaded that his persisting lack of insight into the flawed approach he took to the prosecution of the plaintiff, or his lack of insight into the fact that those flaws were ultimately productive of gross unfairness in the plaintiff’s trial, is sufficient to prove that at the time he initiated and maintained the prosecution he did so for a sole or dominant purpose ulterior to the processes and purposes of the criminal law

[1343]. See, this website.

Malicious prosecution is a tort (a civil wrong), it enables a person who believes that he or she has been subject of groundless and unjustified court-proceedings to seek a civil claim for damages. This area of common law has formed part of English legal history for centuries and continues to evolve. For example, until fairly recently, a defendant that had successfully defended a civil claim for malicious prosecution was prevented from bringing a claim for malicious prosecution against the prosecuting party in respect of the damages caused. However in Willers v Joyce [2016] UKSC 43 it was held that it would be unjust for someone to suffer injury as a result of malicious prosecution of legal proceedings (for which there was no reasonable ground) and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating the litigation. There was previously uncertainty as to whether malicious prosecution claims were limited to the conduct of criminal proceedings with a few exceptions regarding an abuse of civil legal process.

In order to prove there has been a malicious prosecution, two distinct requirements – one alone is insufficient — need to be established: (1). ‘Malice,’ and (2) ‘Absence of Reasonable and Probable Cause.’ If a malicious prosecution is proved, a Court will usually award significant damages. In the recent Wood vs NSW case the amount of compensation sought was in the tens of millions of dollars.

If you believe that proceedings against you may have been such that they would constitute a case of malicious prosecution, do contact our lawyers.