The old axiom is that it is better for ten guilty men to go free than one innocent man to be punished[1]. But what happens to the innocent when the law’s processes of determining that they are in fact not guilty are started and continued unreasonably, propelled by political or personal motives?

Simply being cleared as ‘not guilty’ in a criminal court as formally innocent may not be enough of a statement for someone who has been put through the drawn-out ignominy of serious charges being laid against their name, in public, often with wide coverage; and this is particularly so when they lose their very liberty from these accusations.

We now know a little more about how far the courts will go to compensate the maliciously prosecuted from the recent decision of the Supreme Court of New South Wales, which found against the State in favour of Bill Spedding, who had been accused of child sexual abuse as a means of exerting pressure in the William Tyrrell child abduction case.

The challenge for plaintiffs and their lawyers here is that the tort of malicious prosecution requires much to be proven.

When it is proven, it can, as in this case, provide substantial and meaningful financial compensation to the maliciously prosecuted person.

To prove his or her case, the plaintiff must prove that the:  

1. prosecution was initiated by the defendant.

2. prosecution terminated favourably to the plaintiff.

3. defendant acted with malice[2] in bringing or maintaining the prosecution.

4. prosecution was brought or maintained without reasonable and probable cause’.[3]

The judgment in the Spedding claim, handed down in December 2022 in the NSW Supreme Court, ordered the NSW Police to pay a seven-figure settlement to the former suspect in the William Tyrrell disappearance case.

In 2014, Strike Force Rosann was established by the police to ascertain what happened to three-year-old William, who disappeared from his foster grandmother’s home.

Mr Spedding was incorrectly identified by the NSW Police as a prime suspect. The NSW Police failed to confirm his account and ignored other leads. Although Mr Spedding was not charged for William’s disappearance, in 2015, the Chief Inspector of the Strike Force, Gary Jubelin, charged him with historic child sexual offences dating back to 1987 allegedly against his stepdaughter then aged 6 and his biological daughter then aged 3. These complaints had been ventilated years before in family law litigation during the breakup of his family. The accusations were rejected in these earlier proceedings, and no criminal action was taken against him.

His arrest was the subject of heavy media publicity.  He was imprisoned for two months before being bailed by the NSW Supreme Court. During this time, Mr Spedding was considered to be a paedophile, child abductor and murderer. He was intimidated with various jailhouse threats, including by one prison guard who while strip-searching him threatened him with anal penetration with his nightstick. As an innocent man jailed for the most heinous of crimes, these weeks of incarceration on these charges would have been terrifying.

For all this trouble, in March 2018, Mr Spedding was found not guilty of all sex abuse charges.

Spedding initiated proceedings in 2018 against the NSW Police for malicious prosecution and a separate claim for misfeasance in a public office.

Winning the criminal case entirely is the obvious essential first requirement to be able to bring a civil claim for malicious prosecution: you must be found not guilty of all charges.

Justice Ian Harrison of the Supreme Court of NSW held that there was no reasonable or probable cause to institute or maintain criminal prosecutions against Mr Spedding, as the allegations against him were fabricated and unable to be supported.

The Court also found that police tipped off the media to Mr Spedding’s home address, only serving to increase the pressure and suffering visited upon the plaintiff.

This case is a valuable guide to those wrongly prosecuted who suffer damage to their reputations, their financial well-being, mental health and social position; that there may be financial compensation available for damage inflicted upon the individual by the State.

It is easy to imagine how one would be affected by how he or she is perceived by their friends, colleagues and the community.

In this case, in addition to the normal media smearing and 56 days in custody, upon his release, Mr Spedding continued to be the target of random abuse. He was assaulted in public by strangers, thrown out of his GP’s clinic, yelled at by passers-by, and telephoned with frequent threats described by the Judge as ‘chilling’.

Clearing himself of these malicious allegations did not come cheap, with a $270,000 legal bill, and his washing machine business ruined by the damage to his reputation.

This case reiterates to the State and its citizens both that the courts will step in to protect individuals when its officers act outside of the parameters for charging and prosecuting someone for allegations of criminal conduct.

This cause of action exists to remedy the wrongs committed in the name of the State against innocent individuals when the agents of the state (usually the police) act in an ‘end justifies the means’ way with the awesome power of the state’s criminal law monopoly on penal sanction, improperly in seeking – and failing – to secure findings of guilt against an innocent defendant.

In criminal prosecutions, detectives and police officers must not prosecute for any reason other than to enforce the law in that case. No matter how compelling the ‘other’ reason may be, including a child abduction and murder case like William Tyrrell’s. The courts have again shown here that they will compensate people, like Mr Spedding, who are victimized as a result of an ulterior motive, if the criminal case is brought or maintained without reasonable and probable cause.

No doubt, the pressure on the police in the Tyrrell case was heavy, but the courts are stating broadly here, with a nearly $1.5 million judgment, that this pressure no matter how compelling, is no excuse.

The police focus on specific suspects shows how they can often fail to be ‘open-minded’ to all evidence that may be available in the investigation; and how the courts will act to restore with money the lives of innocent peoples ruined by the bringing of the improper prosecution. This usually takes years of complex legal work, but the system is still working when it can correct itself so openly and at such a cost to the public purse.

[1] of the 18th-century jurist, William Blackstone

[2] ‘malice’ is broadly defined to mean any improper purpose. The only proper purpose for instituting criminal proceedings is to restore justice and assist in enforcing the law. The definition of malice extends more broadly than spite and comprises a range of improper purposes, such as obtaining a private collateral advantage.

[3] Beckett v New South Wales [2013] HCA 17.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action*.