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The Battle Against Malicious Prosecution: What Happened To Bill Spedding
When the police or the Director of Public Prosecutions (DPP) prosecute someone for a crime, they must have reasonable grounds to do so. If the police prosecute someone in order to deliberately hurt or punish someone, this is known as ‘malicious prosecution’. In this article we explain
- malicious prosecution,
- what is reasonable and probable cause,
- what is malice
- and who can be liable.
It is not the job of the police to punish someone, no matter how egregious a wrong that they imagine that person to be guilty of. They should only prosecute someone when they have sufficient evidence to justify such a path. Anyone who experiences a spiteful prosecution may be able to pursue civil remedies for compensation. Malicious prosecution is a tort. That is, it is a civil wrong. This tort means that a person who experiences criminal court proceedings without merit, can take civil action for damages against their prosecutor.
Background to the Bill Spedding case
In early 2015, Bill Spedding was identified incorrectly by NSW Police as the prime suspect in the disappearance of 3 year old William Tyrrell. Police failed to verify his account and relentlessly pursued him. Further, it would appear, this was to the exclusion of other possible leads.
In April 2015, to further pressure Mr Spedding and or to simply stigmatise him, police charged him with serious sexual offences against two children. These offences they alleged to have taken place in the late 1980s. The police knew these allegations to be baseless.
After a very public arrest on 22 April 2015 Spedding went on remand in prison for two months before the NSW Supreme Court gave him bail. Mr Spedding faced a lengthy prosecution and intense media scrutiny and portrayal as the worst possible human:
- a paedophile,
- a child abductor
- and as a child murderer.
In March 2018, Mr Spedding was found not guilty for all of the charges laid against him.
In 2019, Mr Spedding sued NSW Police for malicious prosecution and misfeasance in public office. Mr Spedding argued that the prosecution was maliciously instituted and maintained against him. The historical sex offences had no proper investigation, and Police improperly withheld evidence of his innocence. The charges were to put pressure on Mr Spedding to further the police’s investigation into Mr Spedding as a suspect in the disappearance of William Tyrrell.
What is necessary for a malicious prosecution claim to be successful?
To sustain a malicious prosecution claim, there are a number of considerations. We will deal with each in the following.
Criminal proceedings
Reasonable and Probable Cause
Malice or Spite
If the prosecution fails
Criminal proceedings
The State of NSW (i.e. the Police Force or DPP) must initiate criminal proceedings against you.
Reasonable and Probable Cause
What is reasonable and probable cause?
You can only demonstrate absence of ‘reasonable and probable cause’ if you have the evidence which the investigators and prosecutors had.
‘Reasonable and probable cause’ exists when:
1. The prosecutor believes that the accused is probably guilty of the offence;
2. This belief is founded upon information and/or evidence in the possession of the prosecutor;
3. The prosecutor must believe the information and/or evidence, whether it consists of things observed by the prosecutor or things told to them by others, to be true;
4. There must be reasonable grounds for the prosecutor’s belief; and
5. In considering the above, an objectively prudent person would also believe that the accused is probably guilty of the offence.
In circumstances where either the prosecutor did not believe the prosecution was warranted, or a reasonable person would not have thought the prosecution warranted, then ‘reasonable and probable cause’ will not be said to have existed.
Malice or Spite
Malice must motivate the Crown personnel to initiate the prosecution. This aspect is usually the most difficult to prove.
What is Malice?
Malice is a wrongful or improper intended purpose in prosecuting someone. It can be in the form of spite, ill-will and improper motive. You can establish malice if you can demonstrate that the Crown has an improper and collateral purpose in prosecuting.
Examples of malice in the bringing of a prosecution include:
- to put pressure on the plaintiff to co-operate in other matters
- pressure from elsewhere to bring about a conviction;
- to punish someone for a complaint against the police
- to prevent someone from taking part in other obligations by having them on remand
To sufficiently prove the element of ‘malice’, you must be able to prove that police intended to do harm. In other words, it is necessary to establish that the prosecutor’s motivation was other than the administration of justice.
If the prosecution fails
If the prosecution was unsuccessful (i.e. you got a discharge or a finding of not guilty). The termination of the prosecution can be because of
- an acquittal of the accused on the merits of the case,
- termination of the case where conviction is quashed for technical reasons. This could be something such as a misdirection to the jury by the trial judge, or juror misconduct.
- Discontinuance of the prosecution or termination by the Crown. For example, it enters a nolle prosequi before verdict;
Who is liable for a Malicious Prosecution?
The defendant for most malicious prosecution actions is the State of New South Wales. In most cases the responsible agency would be the NSW Police Force or the Director of Public Prosecutions (DPP).
Anyone who was instrumental in setting the prosecution in motion can also be accountable. For example, someone who aided and abetted the police force into a malicious prosecution.
This may include an informant who deliberately deceives the police by supplying false information which compels them to prosecute.
Why does Malicious Prosecution need to be stopped
We need to stop malicous prosecution for the following reasons:
- to prevent reputation damage leading to harassment, intimidation and threats and the febrile condemnation of the community
- to avoid tremendous humiliation, embarrassment, and anxiety for a plaintiff
- in order to reduce legal costs that we the taxpayers have to bear on behalf of a successful plaintiff
- wasteful use of court resources
- to stop an incorrect focus upon a incorrect suspect meaning that police resources are lost to determining the real culprit.
- to stop someone going to jail for serious offences for which they are entirely innocent.
For example, the NSW Supreme Court awarded Bill Spedding $1.48 million plus interest, holding he suffered malicious prosecution by NSW Police during the 2014 investigation of missing boy William Tyrell.
If you would like to know more about malicious prosecution, you can call us to answer any questions. You can contact our civil lawyers via our web form, or phone us.
