Cosentino v Kent & Anor

[2009] QCA 355

Queensland Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Malicious prosecution
3. › Elements of cause of action
4. › Prosecution by defendant
5. › Whether defendant was 'in truth the prosecutor'
6. › Provision of information to police
7. › Whether prosecutorial discretion misled by false information
8. › Whether police exercised independent judgment
1. Tort
2. › Malicious prosecution
3. › Elements of cause of action
4. › Malice
5. › Whether dominant purpose was other than proper invocation of criminal law
6. › Whether deliberateness required for first element
1. Appeal
2. › Leave to appeal
3. › District Court civil proceedings
4. › Whether error of law or miscarriage of justice established
5. › Whether question likely to prove definitive in future cases
6. › District Court of Queensland Act 1967 (Qld), s 118
1. Evidence
2. › Re-examination
3. › Scope of re-examination
4. › Whether hypothetical question arising from cross-examination permissible

Quick Take

For the first element of the tort of malicious prosecution (that the defendant was the prosecutor), there must be at least an element of 'deliberateness' in the provision of false information or withholding of true information from police, which may fall short of actual malice. A person who provides information to police in good faith, even if some of that information is inaccurate due to oversight, is not thereby elevated to the status of prosecutor. The investigating officer's exercise of independent judgment in deciding to prosecute is a significant factor negating the first element.