The correct test for reasonable and probable cause in malicious prosecution in NSW is that stated by Dixon J in Sharp v Biggs: whether the prosecutor lacked an honest and reasonable belief that the laying of a charge was justified. The test in Mitchell v John Heine, which required belief in the guilt of the accused, should not be followed. A prosecutor need not believe the accused is guilty; it suffices that the prosecutor honestly and reasonably believed there was a proper case to lay before the court. Pressure from superiors to charge if there is a prima facie case does not, without more, constitute malice.
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