Where an investigating police officer honestly believes in the guilt of the accused, the fabrication of evidence to ensure conviction does not negate the subjective element of reasonable and probable cause for malicious prosecution; the fabrication goes to malice, not to absence of honest belief. The material to be considered in assessing the objective element of reasonable and probable cause is not limited to evidence admissible at trial. The NSWCA was divided on whether s 69(3)(a) of the Evidence Act 1995 excludes representations made in the course of giving evidence in a proceeding (majority Hodgson JA and Campbell JA holding it does; Gyles AJA holding it does not).
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