If you were prosecuted for a criminal offence and the charges were ultimately dropped, dismissed, or you were found not guilty, you may have grounds to bring a civil suit for malicious prosecution. Being wrongly accused and prosecuted for a crime you did not commit is profoundly traumatic.
You face the devastating prospect of losing your liberty, your career, your reputation, and your relationships. The financial toll of legal defence, combined with lost income and psychological damage, can be catastrophic.
If police or prosecutors pursued charges they knew or should have known were baseless, the law may allow you to recover compensation. This fact sheet explains what you need to prove, who you can sue, what compensation you might receive, and the important steps to take.
What is Malicious Prosecution?
Malicious prosecution is a civil tort, a legal wrong, that allows you to claim damages from someone who initiates criminal proceedings against you without reasonable cause and with an improper motive. It recognises that the criminal legal system can be misused, and provides a remedy when it is.
The High Court confirmed in the landmark case A v State of NSW [2007] HCA 10 that wrongfully prosecuted individuals can recover substantial compensation if the prosecution was driven by malice or lacked reasonable grounds. Malicious prosecution requires you to prove four specific elements on the balance of probabilities.
A malicious prosecution claim is distinct from a complaint to the Law Enforcement Conduct Commission (LECC) or the NSW Ombudsman. Those bodies investigate police misconduct. A legal action before the courts is how you recover financial compensation for the harm done to you.
Key Takeaways
- You can bring a lawsuit if charges were dropped, dismissed, or you were acquitted, but you must prove all four elements of the tort.
- The High Court confirmed the right to substantial compensation in A v NSW [2007] HCA 10.
- Malice does not require personal hatred — reckless indifference to whether grounds exist is sufficient.
- Claims are typically brought against the State of NSW, which is vicariously liable for police conduct.
- If the DPP took over and continued the prosecution without justification, the DPP can also be sued.
- Damages can include legal costs, lost income, psychiatric harm, reputational damage, and exemplary damages.
- Time limits apply, generally 6 years, but act promptly as evidence is harder to obtain over time.
- These are specialist claims. Early legal advice from experienced civil solicitors is essential.
Contact O’Brien Criminal & Civil Solicitors Immediately If:
Do not delay. Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 immediately. |
The Four Essential Elements You Must Prove
To succeed in a malicious prosecution claim, you must establish all four of the following elements on the balance of probabilities:
| Element | What Must Be Proven |
| 1. Prosecution Initiated by Defendant | The defendant, police or the DPP, must have initiated or maintained the prosecution against you. They must have been the moving force behind bringing the charges, not merely a participant or witness. |
| 2. Proceedings Terminated Favourably | The charges must have been dropped, dismissed, or you must have been acquitted at trial. A conviction bars your claim. Termination must be unequivocal, not a compromise or conditional discharge where guilt was conceded or assumed. See: A v NSW [2007] HCA 10 |
| 3. Absence of Reasonable Cause | The prosecutor must not have had reasonable and probable cause to bring the prosecution. This is judged both objectively (was there evidence that could support the charges?) and subjectively (did the prosecutor actually believe the charges were justified?). |
| 4. Malice | The prosecutor must have acted with ‘malice’ — an illegitimate or oblique purpose other than the proper invocation of the criminal law. This includes reckless indifference to whether grounds exist, spite, ill-will, or improper motive. See guidance from the NSW Judicial Commission. |
What Does ‘Malice’ Mean in Malicious Prosecution?
In malicious prosecution, ‘malice’ does not necessarily mean hatred or ill-will, although it can include these. The High Court defines malice as the dominant purpose being an illegitimate or oblique motive, something other than the proper invocation of the criminal law. Malice can be established by proving:
- Spite, vendetta, or personal animosity against the accused
- Reckless indifference to whether reasonable grounds exist
- Pursuing charges known to be false or unsupported by evidence
- Selective prosecution motivated by improper purpose
- Deliberate concealment or suppression of evidence of innocence
You do not need to prove pure malice if you can show reckless indifference. If the prosecutor did not believe reasonable grounds existed, or if an objective assessment shows no reasonable grounds existed, malice may be inferred. The burden of proof is on you, but circumstantial evidence is admissible. The NSW Judicial Commission’s Bench Book on intentional torts provides further guidance on how courts approach this element.
Proving Absence of Reasonable Cause
Reasonable and probable cause has both a subjective and objective component. Both must be assessed by reference to what the prosecutor knew at the time charges were laid.
Subjective Test
Did the prosecutor actually believe reasonable grounds existed? If the prosecutor did not subjectively believe the charges were warranted. For example, because they had seen contradictory evidence, you have established the subjective limb. This is assessed by reference to what information the prosecutor possessed and what they believed about it.
Objective Test
Even if the prosecutor believed grounds existed, you can still succeed if you prove that, objectively, no reasonable person could have held that belief. Would a person of ordinary prudence and caution, with the information the prosecutor possessed, believe the accused was probably guilty? If not, there was no reasonable cause, and the wrongful initiation of the legal process may be established.
In practice, this means examining the evidence available to police and prosecutors when charges were laid. If that evidence was weak, inconsistent, unreliable, or contradicted by exculpatory material the prosecutor already knew about, you can argue there was no reasonable cause. O’Brien Solicitors’ civil litigation team can review the prosecution file and advise on the strength of this element.
Who Can You Sue: Police vs. DPP
Your claim can be brought against different defendants depending on who initiated or maintained the prosecution. Read our overview of civil claims against police in NSW for broader context.
Suing Police
- Claims are brought against the State of NSW, the State is vicariously liable for police conduct under the Law Reform (Vicarious Liability) Act 1983 (NSW).
- Police typically initiate criminal investigations and lay charges in the Local Court.
- You may also claim misfeasance in public office if police acted contrary to their legal powers.
- In some cases, the conduct may also involve unlawful arrest or false imprisonment, which can be pursued alongside or separately from a malicious prosecution claim.
- Conduct by police can also be referred to the Law Enforcement Conduct Commission (LECC) in parallel with any civil claim.
Suing the Director of Public Prosecutions (DPP)
- The Office of the Director of Public Prosecutions (ODPP) takes over prosecution of indictable offences from police.
- If the DPP continued a prosecution despite clear evidence of innocence, they can be sued.
- The DPP has a statutory obligation under the Prosecution Guidelines of the ODPP to consider whether charges have a reasonable prospect of conviction and are in the public interest. Breach of these guidelines and the resulting unjustified litigation can support a malicious prosecution claim.
- Any DPP decision to discontinue or not proceed with charges is published on the ODPP website and is a matter of public record.
In practice, civil claims are filed in the NSW District Court or Supreme Court. Your solicitor will advise which defendant is appropriate. See the NSW District Court civil jurisdiction overview for information on how claims are commenced.
What Compensation Can You Recover?
If you succeed in a malicious prosecution claim, courts can award three types of damages:
Compensatory Damages
- Legal costs incurred defending the prior criminal proceeding
- Lost income and diminished earning capacity during the prosecution period
- Cost of relocation or accommodation changes due to reputational damage
- Medical and psychiatric treatment for trauma, anxiety, and PTSD
- Damage to reputation and loss of career opportunities
Aggravated Damages
Awarded when the conduct causing the damage was particularly harsh, oppressive, or callous. Reflects additional harm caused by the manner in which the prosecution was conducted, for example, where police knew charges were false but proceeded anyway.
Exemplary Damages
Awarded in cases of particularly reprehensible conduct. Designed to punish the wrongdoer and deter similar conduct. In A v NSW [2007] HCA 10, the High Court upheld an award of over $350,000 for a person wrongfully prosecuted for serious offences. Awards reflect the severity of charges, the length of the prosecution, and the impact on the plaintiff’s life.
Important Limitations and Hurdles
Malicious prosecution claims are difficult and courts approach them cautiously. You should understand the key hurdles before proceeding:
- High threshold: You must prove malice and absence of reasonable cause on the balance of probabilities. Suspicion, incompetence, or poor judgment is not enough.
- Prosecutors’ immunity: Some absolute immunity may apply to certain prosecutorial decisions; however, police do not have the same absolute immunity from legal action. The Law Reform Commission NSW has examined these boundaries in detail.
- Limitation period: Generally 6 years for tort claims under the Limitation Act 1969 (NSW), but this can be extended in certain circumstances. Act promptly.
- Onus on you: The plaintiff bears the burden of proving all elements. The State does not have to prove it acted properly.
- Evidence difficulties: Obtaining prosecution documents, police notebooks, and witness statements from the original matter can be challenging. Early action preserves evidence.
- Complexity: These are specialist claims requiring experienced legal representation from the outset. See our guide to civil claims against police.
Frequently Asked Questions
Can I Sue for Malicious Prosecution if My Charges Were Dropped?
Yes. Charges being dropped, dismissed, or withdrawn counts as a favorable outcome — a termination of the prior criminal proceeding in the plaintiff’s favour. However, you must still prove the other three elements: that the defendant initiated the legal proceeding, that there was a lack of probable cause, and that there was malice. A charge being dropped does not automatically mean the prosecution was malicious, but it does satisfy one of the four required elements. Contact us to assess whether the other elements can be established.
What Does ‘Malice’ Really Mean? Do They Have to Hate Me?
No. Malice in law does not require hatred or personal dislike. It means the prosecutor had an illegitimate or improper motive, a purpose other than properly invoking the criminal law. It can include reckless indifference to whether grounds existed, or deliberately ignoring evidence of innocence. This was confirmed by the High Court in A v NSW [2007] HCA 10. If you can prove the prosecutor acted with deliberate disregard for the truth, that is sufficient malice.
How Much Compensation Can I Get?
Compensation varies depending on the severity of charges, the length of the prosecution, the impact on your life, and the prosecutor’s conduct. Successful claims have resulted in awards ranging from tens of thousands to several hundred thousand dollars. Courts consider lost income, legal costs, medical treatment, reputational damage, and psychological harm. Aggravated and exemplary damages can significantly increase the award where the conduct was particularly serious. Our civil litigation solicitors can give you an indicative assessment of your case value after reviewing the facts.
Can I Sue the DPP Directly?
Yes, if the DPP took over the prosecution and continued it, maintaining unjustified litigation, despite lacking reasonable cause or acting with improper motive, you can include the DPP as a defendant. You must prove they acted with malice or reckless indifference. The DPP has express obligations under its Prosecution Guidelines to ensure charges are in the public interest and carry a reasonable prospect of conviction. Material breach of those guidelines, combined with proof of the other elements, can found a successful claim.
Can I Also Make a Complaint to the LECC or Ombudsman?
Yes. A civil suit for compensation and a complaint to the Law Enforcement Conduct Commission or the NSW Ombudsman are not mutually exclusive. However, they serve different purposes: the LECC investigates and disciplines police officers, while a legal action before the courts is how you recover monetary compensation. Evidence gathered through an LECC investigation may be useful in civil proceedings, though procedural rules apply. Your solicitor can advise on running both processes in parallel.
Take Action Today
If you have been wrongly prosecuted and believe the charges were brought without reasonable cause or with malice, you may be entitled to significant compensation. Malicious prosecution claims require specialist knowledge, careful preparation, and experienced legal representation. The sooner you act, the better, time limits apply and evidence becomes harder to obtain over time.
Contact O’Brien Criminal & Civil Solicitors today on 02 9261 4281 to discuss your case. We can advise whether you have grounds for a claim, what evidence you will need, and the likely value of your case.
