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Chuks Okpaluba - One of the best experts on this subject based on the ideXlab platform.

  • Reasonable and probable cause in the law of Malicious Prosecution: a review of South African and Commonwealth decisions
    Potchefstroom Electronic Law Journal Potchefstroomse Elektroniese Regsblad, 2017
    Co-Authors: Chuks Okpaluba
    Abstract:

    The requirement that the plaintiff in an action for Malicious Prosecution must prove a lack of reasonable and probable cause to initiate, instigate or continue the Prosecution on the part of the instigator or prosecutor is one of the four elements of that cause of action. It is a vital link between the lawfulness of the Prosecution and the state of mind of the defendant. Again, whether a Prosecution is wrongful or lawful depends on whether there was a reasonable and probable cause coupled with the animus iniuriandi of the defendant in instigating, initiating or continuing it. It is not whether the prosecutor possessed evidence to secure a conviction since that is for the trial court to decide after the conclusion of evidence; but, the honest belief by the prosecutor that, having carefully collected and objectively assessed the available information, the plaintiff was probably guilty of the crime. In coming to that decision the prosecutor must have grappled with both the subjective and objective elements in the exercise of that discretion. The Australian High Court judgment in A v New South Wales 2007 230 CLR 500 (HCA) has brought clarity to this aspect of the problem. However, as this paper contends, the ten-point guidelines enunciated by that court in that case and designed to provide the courts with a seemingly less complicated formula for determining if the prosecutor lacked reasonable and probable cause do not appear to have provided the panacea to the problem. Meanwhile, the distinct nature of the requirement of reasonable and probable cause is made clearer when it is compared with reasonable ground to arrest in the case of wrongful arrest and the tort of abuse of process. Also problematic and equally challenging is identifying where a reasonable and probable cause inquiry stops and malice begins. This is brought out in the attempt by the Supreme Court of Canada to unravel the tension between the proof of the existence of malice and reasonable and probable cause in the law of Malicious Prosecution in Miazga v Kvello Estate 2009 3 SCR 339 (SCC). The extent to which the guidelines laid down in these recent cases would have resolved the confusion in this field of the law is yet to be realised.

  • Between reasonable and probable cause and malice in the law of Malicious Prosecution : a Commonwealth update
    2016
    Co-Authors: Chuks Okpaluba
    Abstract:

    Although the requirements of absence of a reasonable and probable cause and malice are two distinct elements in an action for Malicious Prosecution, they sometimes appear inseparable. An absence of reasonable and probable cause might, in instances, be a clear indication of malice on the part of the Prosecution. However, while the absence of reasonable and probable cause is often deduced from the conduct of the prosecutor, judged from the objective standpoint of a reasonable prosecutor possessed of the same information, malice is inferred from the state of mind of the prosecutor as to whether he or she genuinely intended to bring the accused person to justice, or had operated from the angle of vengeance, improper purpose, targeted malice or for any unlawful purpose. Such inference can easily be drawn where the investigating officer and the prosecutor knowingly relied on fabricated information - Minister of Safety and Security v Tyokwana 2015 (1) SACR 597 (SCA). The burden of proof of both elements, though extensively canvassed by the Australian High Court in A v New South Wales (2007) 230 CLR 500 (HCA), has been taken a step further by the New South Wales Court of Appeal in State of NSW v Quirk [2012] NSWCA 216. The Supreme Court of Appeal of South Africa has maintained in Woji v Minister of Police 2014 (1) SACR 409 (SCA) that negligence or gross negligence, short of dolus eventualis, would not suffice in a claim for Malicious Prosecution. The defendant must have been aware of the wrongfulness of his or her conduct in initiating or continuing the Prosecution, but nevertheless continued to act, reckless as to the consequences of his or her conduct.

  • Reasonable suspicion and conduct of the police officer in arrest without warrant : are the demands of the bill of rights a fifth jurisdictional fact?
    South African journal of criminal justice, 2014
    Co-Authors: Chuks Okpaluba
    Abstract:

    Quite apart from the power to arrest a person who committed or attempted to commit an offence in the presence of a police officer under s 40(1)(a) of the Criminal Procedure Act 1977, the officer can, under s 40(1)(b), arrest anyone without a warrant if he or she reasonably suspects that the person has committed an offence specified in Schedule 1 of the Act. As much as the determination of whether an offence has been committed or about to be committed in the presence of an officer is difficult to prove, what is a reasonable suspicion that an offence has been committed is even more intractable to determine. Yet, similar elusive terms exist in criminal justice statutes of other Commonwealth countries. Further, notwithstanding the problem of accurately pinpointing the elements of reasonable suspicion, the law-maker has unrelentingly deployed this same problematic expression in the legislative schemes dealing not only with arrests and detentions, but also use of force to effect arrest, entry into private property in order to arrest or search and seize property, as well as the law of Malicious Prosecution.

  • Proof of malice in the law of Malicious Prosecution: a contextual analysis of Commonwealth decisions
    Journal of juridical science, 2013
    Co-Authors: Chuks Okpaluba
    Abstract:

    Generally, malice is a difficult term to define. But, as an element of the law of Malicious Prosecution, it is likened to spite, ill will or vengeance. In this context, malice represents improper purpose, one alien to the criminal justice system. It emphasises the dominant purpose for the Prosecution as to whether it is an improper invocation of the criminal process. Although malice is a separate factor in determining Malicious Prosecution, it is indeterminate in nature as it tends to overlap with the requirement of reasonable and probable cause. Where the objective sufficiency of the material considered by the prosecutor in deciding to prosecute is satisfied, it is unlikely that malice can be imputed. Whereas from a lack of reasonable and probable cause improper purpose could be inferred. As malice contemplates deliberate intentional act, it is argued that negligence, whatever the degree, will not suffice. Bewys van kwaadwilligheid in die geval van kwaadwillige vervolging : 'n kontekstuele analise Kwaadwilligheid is moeilik definieerbaar. As 'n element van die misdryf van kwaadwillige vervolging kan dit vergelyk word met nydigheid, haat en wraak. In hierdie konteks verteenwoordig kwaadwilligheid 'n onbehoorlike doel wat vreemd aan die strafreg is. Dit beklemtoon die hoofrede van die vervolging met betrekking tot die vraag of dit 'n onbehoorlike aanwending van die strafreg is. Alhoewel kwaadwilligheid 'n aparte faktor ten opsigte van kwaadwillige vervolging is, is dit moeilik bepaalbaar aangesien dit oorvleuel met die vereiste "reasonable and probable cause". Waar die inligting waarop die aanklaer sy besluit om te vervolg baseer, voldoende is, is dit onwaarskynlik dat kwaadwilligheid toegeskryf kan word. Terwyl in die geval van die afwesigheid van "reasonable and probable cause" 'n onbehoorlike doel afgelei kan word. Aangesien kwaadwilligheid 'n opsetlike handeling veronderstel, word daar aangevoer dat nalatigheid van enige aard nie voldoende sal wees om die misdryf te bewys nie.

  • "Prosecution" in an action for Malicious Prosecution : a discussion of recent commonwealth case law
    2013
    Co-Authors: Chuks Okpaluba
    Abstract:

    An action for Malicious Prosecution is the common law's response to the victim's cry for justice where a criminal Prosecution was instituted contrary to law. Through the action for Malicious Prosecution the state is held accountable for the acts of prosecutors who do not enjoy absolute immunity for violating the liberty of the person and the human dignity arising from botched Prosecution. The action, therefore, is an attempt at restoration in monetary terms, of those entrenched constitutional values. In the language of tort or delict, the plaintiff for such an action alleges wrongfulness: that the conduct of the prosecutor was unlawful; that it failed the reasonableness test; and that it was motivated by improper purpose or malice. "Vervolging" in 'n aksie vir kwaadwillige vervolging : 'n bespreking van onlangse statebond-regspraak Ingevolge beide die gemenereg asook die grondwetlike stelsel, is 'n aksie vir kwaadwillige vervolging die reg se reaksie op die verwonding van menswaardigheid, integriteit en beeld van die persoon teen wie die ratte van die strafregtelike stelsel kwaadwillig en sonder redelike en waarskynlike regsgronde in werking gestel is. Hierdie aksie poog om die burgers van die land te beskerm teen arbitrere arrestasie, onregmatige aanhouding, en swak-gemotiveerde en ongegronde vervolging. Ten einde met 'n aksie vir kwaadwillige vervolging te slaag, moet die eiser vier elemente bewys. Dus, bykomend tot kwaadwilligheid en afwesigheid van redelike en waarskynlike regsgronde, moet hy ook twee vervolgingsverwante elemente bewys, naamlik dat daar 'n vervolging was wat in sy guns beslis is. Ten einde die verweerder se aanspreeklikheid te bepaal, moet die hof 'n aantal deurslaggewende aspekte wat uit hierdie vervolgingsverwante elemente voortspruit, oorweeg. Byvoorbeeld, wat stel vervolging daar; en wanneer kan 'n mens se dat iemand 'n vervolging ingestel en deurgevoer het? Is die amptenaar, die werkgewer of die individu wat bloot die inligting aan die polisie oorgedra het 'n aanstigter van die vervolging? Of is dit die persoon wat aktief meegedoen het aan die vervolging wat die aanstigter is? 'n Nuttige riglyn in die beantwoording van hierdie belangrike vraag is te vinde in Martin v Watson wat bevestig is in Miazga v Kvello Estate, Hunt v AB en Bayett v Bennett. Die tweede stel vrae het betrekking op die uitslag van die vervolging wat in die guns van die eiser beslis is. Kan 'n eiser 'n suksesvolle aksie instel vir kwaadwillige vervolging waar daar geen vervolging was nie; waar daar vryspraak was; 'n skikking plaasgevind het; 'n besluit van nolle prosequi deur die staatsaanklaer genotuleer is; of waar die vervolging voorlopig teruggetrek is deur die aanklaer? Laastens, kwalifiseer dissiplinere verrigtinge as 'n vervolging vir doeleindes van 'n aksie vir kwaadwillige vervolging? Hierdie artikel ondersoek die aspek van die instel van 'n vervolging asook die beeindiging daarvan in die reg insake kwaadwillige vervolging. Daar word geargumenteer dat dit ewe moeilik is om die aspek van vervolging te bewys, as wat dit is om die afwesigheid van redelike en waarskynlike regsgronde of selfs kwaadwilligheid te bewys. Hierdie studie bewys dat die vereistes van die instel en deurvoer van die vervolging asook die afloop daarvan in die guns van die eiser, nie so klinkklaar of selfs minder omstrede is as die aspek van redelike en waarskynlike regsgronde nie. Dit is ook duidelik dat hierdie aspekte nie minder gekompliseerd is as die aspek van kwaadwilligheid, wat tradisioneel as problematies beskou is nie.

Christian Witting - One of the best experts on this subject based on the ideXlab platform.

  • Law Trove - 23. Misuse of process and public powers
    Law Trove, 2018
    Co-Authors: Christian Witting
    Abstract:

    This chapter examines the provisions of tort law concerning misuse of process and public powers. It discusses elements of the three principal causes of action, these being Malicious Prosecution, abuse of process, and misfeasance in a public office. It highlights the need to balance the protection of individual rights and interests with the conduct of public administration and the administration of justice. This chapter also considers the limits to witness immunity and abuse of the legal process.

  • 23. Misuse of Process and Public Powers
    Street on Torts, 2015
    Co-Authors: Christian Witting
    Abstract:

    This chapter examines the provisions of tort law concerning misuse of process and public powers. It discusses elements of the three principal causes of action, these being Malicious Prosecution, abuse of process, and misfeasance in a public office. It highlights the need to balance the protection of individual rights and interests with the conduct of public administration and the administration of justice. This chapter also considers the limits to witness immunity and abuse of the legal process.

Myles Frederick Mclellan - One of the best experts on this subject based on the ideXlab platform.

  • Innocence Compensation: Vicarious Liability and Indemnification by the State for the Harms Caused by Wrongful Convictions
    SSRN Electronic Journal, 2017
    Co-Authors: Myles Frederick Mclellan
    Abstract:

    The errors of the criminal justice system that give rise to the systemic causes of wrongful convictions that cause harm embodied in the causes of action for Malicious Prosecution, negligent investigation and a Charter breach are founded upon the misfeasance of the police in the investigation of crime and the malfeasance of the crown in the Prosecution of crime. There are several hurdles that frame the prospect for success in litigation against the State seeking compensation including fault thresholds and crown immunities. In the event a plaintiff can fortuitously climb over these hurdles, the road to recovery is framed by the engagement of vicarious liability and the availability of indemnification for the offending police officer or crown counsel. Presumptively the obligation for financial redress falls at the feet of the individual defendants and not necessarily the State. This limitation on recovery is an unprincipled and unfair result for a plaintiff as a victim of the criminal justice system.

  • The loss of innocence and the pursuit of compensation for the wrongly convicted
    2017
    Co-Authors: Myles Frederick Mclellan
    Abstract:

    Unlike the United Kingdom and a majority of the United States, there is no legislated right to compensation for wrongful convictions in Canada. For those who have suffered tremendous personal and financial damage as a result of a wrongful incarceration, the available remedies include the expensive and time-consuming routes of litigation for Malicious Prosecution, negligent investigation and a Charter breach, or the highly-politicized exercise of mercy by a government to make an ex gratia payment. While the State’s failure to prove guilt in the criminal justice process as a fundamental operation of the presumption of innocence should provide relief to an accused in the pursuit of financial redress from a wrongful conviction, the requirement that evidence of factual innocence be adduced is a burden few can meet. While the Supreme Court of Canada has taken a broader approach than other common law jurisdictions in allowing law suits to proceed seeking compensation against police, the Crown and crown counsel, the legal doctrines applied have been questionable. The Court has utilized tenets embodied in corrective justice models employing issues of fault, deterrence and vicarious liability which have severely limited recovery for a plaintiff who cannot prove the requisite level of neglect or malfeasance. It can be argued that the more principled approach would be one appropriate to the arena of public law employing distributive justice and strict enterprise liability. The question becomes who should bear the burden of the harm of a wrongful conviction: the individual as the victim of the criminal justice system, or the State, as the party who inflicted that harm.

  • Innocence Compensation: Private Law Principles for Public Law Remedies
    SSRN Electronic Journal, 2016
    Co-Authors: Myles Frederick Mclellan
    Abstract:

    As challenging as it is for an innocent person accused of a crime to be successfully exonerated, the pursuit of compensation to redress the harm caused by that accusation is an entirely new yet continuing burden. Notwithstanding the State’s error or in the investigation and Prosecution that wrongly caused damage, there are substantial hurdles that stand in the way of any prospect for financial recovery. These hurdles limit the liability of crown attorneys and police officers. Principles of corrective and distributive justice provide the framework within which liability is assessed. There are degrees of fault which impede the pursuit of compensation to the private law actions for Malicious Prosecution and negligent investigation and to public law actions for the breach of Charter rights. The law of tort has evolved in the common law and by way of statute to impose crown immunities and to limit recourse to liability by virtue of rules relative to vicarious liability. It is the individual police officer and crown attorney who are primarily responsible to the plaintiff, notwithstanding it is the State that controls the enterprise of investigating and prosecuting crime for the benefit of the public. It is the State that should bear the burden of damages caused when that enterprise goes wrong.

  • Innocence Compensation: The Private, Public and Prerogative Remedies
    SSRN Electronic Journal, 2012
    Co-Authors: Myles Frederick Mclellan
    Abstract:

    There is no doubt that the issue of wrongful convictions has grown in public awareness over the past twenty-five years including the need to redress the wrongs for those who have suffered tremendous personal and financial damage as a result of a wrongful incarceration. The available remedies to pursue compensation include civil litigation for Malicious Prosecution, negligent investigation, a Charter breach; a petition to a United Nations Human Rights Committee or the highly politicized exercise of discretion by government to make an ex gratia payment. Except for the very few, none of these remedies are efficacious. Liberal democracies like Canada are honour bound if not constitutionally mandated to provide for innocence compensation far beyond the onerous and cost prohibitive pursuit of litigation against the State and the current highly secretive and inadequate ex gratia environment requiring an elusive exercise of mercy.

Xiao Jian-hua - One of the best experts on this subject based on the ideXlab platform.

  • Rules on Malicious Prosecution
    Journal of Renmin University of China, 2012
    Co-Authors: Xiao Jian-hua
    Abstract:

    Malicious Prosecution is some illegal acts conspired and conducted by all parties in accordance with the procedures prescribed by law,during which the court is defrauded.Malicious Prosecution should meet the requirements including body,subjective and objective aspects,objects,and it owns various contexts.Ancient Rome,France,Germany all made regulations to deal with Malicious Prosecution,these regulations are valuable to China.In China,Malicious Prosecution would be restrained and resolved by injunctive action,criminal liability,intervention,initiating another action separately,third-party revoking process and other legal principles.

Shaun L. Gabbidon - One of the best experts on this subject based on the ideXlab platform.

  • Bowden v. Caldor
    Journal of Ethnicity in Criminal Justice, 2007
    Co-Authors: Patricia A. Patrick, Shaun L. Gabbidon
    Abstract:

    Abstract Using the facts of the Bowden v. Caldorlawsuit in which Bowden alleges the intentional infliction of emotional distress, defamation, false imprisonment, Malicious Prosecution, and wrongful discharge against his employer, this paper explores the mistreatment at the hands of private security officers and store personnel. This exploration is important because it discusses several issues such as: (1) the racially influenced misconduct of private security officers; (2) the damage awards often awarded to victims of private security misconduct; (3) the effect deceptive practices can have on false confessions, especially those of juveniles; and (4) the abuse of juveniles by private security officers. To curtail abusive practices, the authors recommend that store owners establish more stringent store policies pertaining to handling employees during theft investigations.

  • An empirical assessment of employee theft lawsuits involving allegations of employer misconduct
    Journal of Criminal Justice, 2006
    Co-Authors: Shaun L. Gabbidon, Patricia A. Patrick, Steven A. Peterson
    Abstract:

    Abstract This study explored state-level cases where employees sued their employers because of allegations of misconduct. Using the Lexis-Nexis legal database, employee theft cases from 1960–2004 were located and analyzed (n = 217). The descriptive analyses revealed that most of the cases originated from private corporations. While there were a variety of reasons why employees pursued lawsuits against their employers, the most frequent were to appeal a conviction, to allege slander or defamation, wrongful termination, Malicious Prosecution, Constitutional violations, and other unemployment-related issues. The employees were victorious in 60 percent of the cases. The research also revealed several patterns in case outcomes based on employee position and gender. Multivariate analyses revealed some of the most significant predictors of employee success in legal suits against their employers.