le­gal re­course

The law pro­vides a rem­edy for ma­li­cious pros­e­cu­tion.

The Star Malaysia - Star2 - - ENVIRONMENT - BHAG SINGH

A PER­SON may be charged in court be­cause a po­lice re­port has been made. Of course, the re­port merely trig­gers off an in­ves­ti­ga­tion, and in turn the per­son may be charged by the rel­e­vant party. The out­come could be a con­vic­tion or an ac­quit­tal. A reader says he knows of in­stances where a re­port was made based on sus­pi­cion. Yet the per­son against whom the re­port was made was charged even though he was sub­se­quently ac­quit­ted. This caused him dam­age. Can such a per­son sue the per­son who made the re­port in the first place? There are also sit­u­a­tions where af­ter a per­son is charged, the mat­ter does not pro­ceed to full trial. Be­fore com­mence­ment of the trial or dur­ing the trial, the pros­e­cu­tion may with­draw the charge or drop the case. There­after, the per­son charged would be ac­quit­ted, and the same ques­tion arises. The sit­u­a­tion would be dif­fer­ent if the per­son charged is con­victed as there is hardly any ba­sis for le­git­i­mate grounds to com­plain against the per­son who made the re­port. There are also cases where af­ter a po­lice re­port was lodged, the per­son com­plained against is called in for ques­tion­ing or even de­tained but later re­leased. The per­son so de­tained is likely to feel ag­grieved and may seek rem­edy in defama­tion but there are lim­i­ta­tions. Where a per­son com­plained against is charged, dam­age has been caused. The law, no doubt, pro­vides a rem­edy based on ma­li­cious pros­e­cu­tion. How­ever, there are ba­sic re­quire­ments which need to be com­plied with in or­der to suc­ceed. These are not easy to meet and the onus of proof is on the claimant. This is be­cause for ac­tion to be brought and pur­sued suc­cess­fully, there must be what is re­garded as, among oth­ers, “abuse of le­gal process”. The in­ten­tion of the per­son who made the re­port should have been to cause wrong­ful harm to the per­son re­ported against, and not merely to re­port a wrong done. Pur­suant to a re­port be­ing made and in­ves­ti­ga­tions car­ried out, the per­son charged may well be ac­quit­ted af­ter he is charged. This may be af­ter trial or as a re­sult of the charge be­ing with­drawn and the pros­e­cu­tion be­ing dis­con­tin­ued. But ac­quit­tal alone can­not be the ba­sis of a suc­cess­ful claim for ma­li­cious pros­e­cu­tion. This is be­cause the el­e­ments of such a claim are the in­sti­tu­tion of pros­e­cu­tion with­out rea­son­able or prob­a­ble cause, mal­ice and an out­come es­tab­lish­ing the in­no­cence of the per­son bring­ing the claim. Ac­quit­tal of a charge alone does not mean that the in­sti­tu­tion of crim­i­nal pro­ceed­ings was nec­es­sar­ily with­out rea­son­able and prob­a­ble cause. This is clear from the de­ci­sion of Brett MR in Abrath vs North East­ern Rail­way Co. The judge said: “It is not enough for the plain­tiff to show, in or­der to sup­port the claim which he has made, that he was in­no­cent of the charge upon which he was tried. He has to show that the pros­e­cu­tion was in­sti­tuted against him by the de­fen­dant with­out any rea­son­able or prob­a­ble cause and with a ma­li­cious in­ten­tion in the mind of the de­fen­dants, that is, not with the mere in­ten­tion of car­ry­ing the law into ef­fect, but with an in­ten­tion which was wrong­ful in point of fact. It has been de­cided over and over again that all these points must be es­tab­lished by the plain­tiffs, and that the bur­den of each of them lies upon the plain­tiff.” What will con­sti­tute want of rea­son­able and prob­a­ble cause and mal­ice de­pends on the cir­cum­stances of the case. A much quoted state­ment by Tin­dal J. in Wil­lans vs Tay­lor, reads: “What shall amount to such a com­bi­na­tion of mal­ice and want to prob­a­ble cause is so much a mat­ter of fact in each in­di­vid­ual case as to ren­der it im­pos­si­ble to lay down any gen­eral rule on the sub­ject, but there ought to be enough to sat­isfy a rea­son­able man that the ac­cuser had no ground for pro­ceed­ing but his de­sire to in­jure the ac­cused.” Claims based on ma­li­cious pros­e­cu­tion are hard to come across. Such a claim can be seen in Robin vs Sun­rise In­vest­ments (Pte) Ltd & Anor, a Singapore case. The plain­tiff was a per­ma­nent res­i­dent of Aus­tralia and the sec­ond de­fen­dant a pro­pri­etor of a firm of pub­lic ac­coun­tants and also the plain­tiff’s con­sul­tant in tax mat­ters. The plain­tiff had gone to visit the sec­ond de­fen­dant about tax mat­ters. In the course of con­ver­sa­tion, the plain­tiff in­di­cated he was con­sid­er­ing busi­ness op­por­tu­ni­ties in Aus­tralia, es­pe­cially in jew­ellery and stones. The sec­ond de­fen­dant took a packet of emer­ald stones which be­longed to him, and showed it to the plain­tiff. The sec­ond de­fen­dant’s ta­ble was clut­tered with doc­u­ments. In be­tween, a tele­phone call came in which he at­tended to. Mean­while, the plain­tiff walked out of the room, then came back again, and sub­se­quently left. Shortly af­ter, the sec­ond de­fen­dant re­alised that the en­ve­lope with the emer­alds was missing and he tried to get in touch with the plain­tiff who was not reach­able be­cause he was on the move. By the time the plain­tiff got back, the de­fen­dant had made a po­lice re­port. Fol­low­ing this, the plain­tiff was ap­pre­hended and later charged. How­ever, the pros­e­cu­tion was later dis­con­tin­ued and the plain­tiff ac­quit­ted and dis­charged. He then in­sti­tuted an ac­tion for ma­li­cious pros­e­cu­tion, against the de­fen­dant. The ques­tion that the court posed to it­self was whether the sec­ond de­fen­dant had hon­estly be­lieved that the emer­alds were re­moved by the plain­tiff. In do­ing so, the judge was guided by Hawkins J. in Hicks vs Faulker. He said: “I should de­fine rea­son­able and prob­a­ble cause to be, an hon­est be­lief in the guilt of the ac­cused based upon a full con­vic­tion, founded upon rea­son­able grounds, of the ex­is­tence of a state of cir­cum­stances, which, as­sum­ing them to be true, would rea­son­ably lead any or­di­nar­ily pru­dent and cau­tious man, placed in the po­si­tion of the ac­cuser, to the con­clu­sion that the per­son charged was prob­a­bly guilty of the crime im­puted.” The court than went on to de­cide that even if it be oth­er­wise, the re­port was not lodged with any mal­ice. There was noth­ing to sug­gest that the in­ten­tion of the sec­ond de­fen­dant was to cause wrong­ful harm to the plain­tiff.

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