Malicious prosecution is a civil wrong which enables a person who was the subject of unreasonable and unjustified court proceedings (usually criminal) to seek compensation from their prosecutor. A number of criteria must be met for a person to succeed in an action for malicious prosecution including the folllowing:-

1. termination of the prosecution proceedings was in the plaintiff’s favour;
2. there was no reasonable cause for the prosecution;
3. there was evidence of malice on the prosecutor’s part; and
4. the plaintiff suffered actual damage.

A former Police Officer was initially successful in his claim against the NSW Police for malicious prosecution after he was caught urinating in a Surry Hills Street.  He was awarded damages in the sum of $170,000.00.  Mr Beck was off duty and out with friends nightclubbing in the early hours of the morning when he needed to relieve himself.  He was observed by two other police officers who confronted him and was charged with conducting himself in an offensive manner in a public place.  Both police officers said in their statements that Mr. Beck’s penis was clearly exposed and that he made no attempt to conceal it.

The charges were later withdrawn and dismissed after the Director of Public Prosecutions elected not to prosecute.  However, Mr. Beck was subsequently demoted from constable level 5 to level 3 on grounds his conduct had breached the NSW Police Force Code of Conduct and Ethics.

Mr Beck commenced proceedings in the Supreme Court seeking compensation.  He did not deny urinating in the gutter but claimed he was standing with his back to the street and that he had concealed his penis with his hand while urinating.  He also claimed the evidence of both police officers had been fabricated.

The Supreme Court found that the two police officers had fabricated their versions of events and that their claims that Mr Beck’s penis was clearly exposed while he urinated were deliverately false.  The trial judge also quashed the Commissioner’s decision to demote him.  Mr Beck was awarded $50,000.00 in general damages and $80,000.00 in exemplary damages.

Unfortunately for Mr Beck, in December last year the Court of Apeal found that the trial judge did not determine the issues regarding fabrication of evidence to the proper standard, having regard to the seriousness of the allegations and ordered that the matter be reheard.  In relation to the decision to demote Mr Beck, the Court of Appeal found that the Commissioner of Police was not unreasonable in finding his conduct to be seriously inappropriate and unacceptable even on Mr Beck’s own version of events.

For more information or if you believe you have been the subject of a malicious prosecution, contact Peter Moore of Brazel Moore Lawyers today.