New South Wales v Spedding

State of New South Wales v Spedding [2023] NSWCA 180
Court of Appeal of New South Wales
Bell CJ, Ward P. & Adamson JA
Malicious prosecution – Spedding became a person of interest in the investigation into the disappearance of Wiliam Tyrell in Kendall in 2014 – as an important part of a written strategy authored by the supervising police officer and implemented to further the Tyrell investigation, police arrested and charged Spedding regarding alleged child sexual assaults dating back to 1987 – the supervising officer or someone acting on his instructions altered the media to the arrest – in a 1987 judgment, which was available to the police at the time of Spedding’s arrest, Gee J of the Family Court had found that the allegations against Spedding were the product of coaching from his former wife and her sister – Spedding was found not guilty of the historical offences and was awarded costs – Spedding sued for malicious prosecution, misfeasance in public office, and collateral abuse of process – the primary judge found for Spedding on all three torts, and awarded damages of about $1.5million – the State appealed – held: that the prosecutor may not have read or reviewed certain material does not render it irrelevant to whether the prosecutor lacked reasonable and probable cause to initiate criminal proceedings – the question is what the prosecutor “made” or “should have made” of the available material – the police had lacked a reasonable and probable basis for arresting and charging Spedding – the primary judge had not erred in finding that the frenetic and poorly conceived arrest of Spedding could never have been justified, and was clearly malicious – the institution of proceedings for an improper purpose was itself an unauthorised act for the purposes of the tort of misfeasance in public office – central to the tort of collateral abuse of process was the finding that the proceedings had been commenced for a dominant purpose outside the scope of the criminal process invoked, and the institution of criminal proceedings to advance an unrelated investigation was not a proper purpose – it was difficult to imagine a more seriously improper tactic in the purported exercise of legitimate police powers than to arrest and charge a man in order to put pressure upon him in relation to an ongoing but unrelated investigation, and to persist long after the desired strategic advantage had patently evaporated – the supervising officer’s later published comments that it was inevitable that Spedding would be damaged but that was the price of his search for a killer should be rejected as illegitimate, wholly unacceptable, and inappropriate, and its repetition should be disavowed and deterred in the strongest possible terms – the compensatory damages (including aggravated damages) were not excessive – $300,000 in exemplary damages had been to indicate the Court’s disapproval of the conduct, to uphold and vindicate the rule of law, and to encourage the State to take steps to ensure that such reprehensible conduct does not recur – this award of exemplary damages fell within the appropriate range, having regard to the conduct – appeal dismissed.
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