NSW government loses appeal in relation to malicious prosecution

Aug 11, 2023 | Publication

In a landmark court decision, William Spedding (referred to as Mr. Spedding) successfully sued the State of New South Wales for malicious prosecution, misfeasance in public office, and collateral abuse of process. The case stemmed from Mr. Spedding’s arrest and subsequent prosecution for historical child sexual assault charges in relation to a separate criminal investigation concerning the disappearance of a 3-year-old boy named William Tyrrell. The court’s decision, delivered by a panel of judges, explored various legal issues including the conduct of law enforcement officers, the role of the Office of the Director of Public Prosecutions (ODPP), the existence of malicious intent, and the assessment of damages.


The case centred around the disappearance of William Tyrrell from a residence in Kendall, NSW, on September 12, 2014. Mr. Spedding became a person of interest and a prime suspect in the investigation. Inspector Gary Jubelin (Jubelin), Detective Sergeant Moynihan (Moynihan), and Detective Senior Constable Brennan (Brennan), collectively known as the Police Officers, were involved in the investigation.

One strategy employed in the investigation was the arrest and charging of Mr. Spedding for unrelated child sexual assault charges. The aim was to increase pressure on Mr. Spedding and to further the investigation into William Tyrrell’s disappearance. This strategy included obtaining a covert listening device warrant to place a surveillance device in Mr. Spedding’s cell. However, evidence suggested that the charges were unfounded, and the Police Officers lacked reasonable and probable cause for Mr. Spedding’s arrest.

Legal Issues and Findings

The court’s decision covered several key legal issues and corresponding findings:

Reasonable and Probable Cause Issue: The court clarified that the lack of reasonable and probable cause for arrest does not depend on the actual knowledge of the prosecutor but on the available evidence and what the prosecutor should have inferred from it. In this case, the Police Officers lacked a reasonable and probable basis for Mr. Spedding’s arrest due to the existence of evidence that cast doubt on the allegations and the failure to consider crucial information.

Maintenance Issue: The court found that the Police Officers maintained the prosecution even after the ODPP took over the case. They controlled and withheld material relevant to the maintenance of bail and prosecution. The delay in disclosing critical interview notes raised concerns about the integrity of the process.

Malice Issue: The court recognized that the arrest of Mr. Spedding with the aim of advancing an unrelated investigation constituted an improper purpose. Malice could be inferred from the improper purpose behind the commencement of proceedings.

ODPP Issue: The court determined that the ODPP was not aware of the improper purpose held by the Police Officers in arresting and charging Mr. Spedding. As such, the ODPP could not be held liable for malicious prosecution.

Public Power Issue: While the distinction between malicious prosecution and misfeasance in public office was debated, the court concluded that the initiation of proceedings was an unauthorised act for the purposes of the tort. This finding established liability for misfeasance in public office.

Abuse of Process Issue: The court held that Brennan and Moynihan were parties to the charging and criminal proceedings against Mr. Spedding, while Jubelin was not. However, the State’s vicarious liability for all three Police Officers was established, and their improper purpose was deemed the dominant reason for commencing the proceedings.

Damages Issue: The court determined that Mr. Spedding suffered significant harm due to the false charges, which tarnished his reputation and led to public opprobrium. Damages were deemed appropriate, including non-economic loss, aggravated damages, exemplary damages, and costs.

In a comprehensive decision, the court established that the State of New South Wales was vicariously liable for the conduct of the Police Officers, including their improper and malicious actions in initiating and maintaining proceedings against Mr. Spedding. The judgment not only emphasized the importance of reasonable and probable cause in legal proceedings but also highlighted the need for transparency, integrity, and ethical conduct in law enforcement and prosecution. The outcome set a precedent for holding public officials accountable for their actions and ensuring justice for individuals wrongfully prosecuted.

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