On July 27, the trial of Roseanne Beckett's malicious prosecution case against the NSW government finally got underway. If she is successful, Roseanne will be awarded compensation for the destruction of her life and livelihood and the ten years she spent in prison.

The trial is taking place before Justice Ian Harrison in a small court in Sydney's Supreme Court. The court is overflowing with court books, tender books, exhibits, transcripts and police files from earlier proceedings.

Roseanne is represented by senior counsel Paul Blackett and barrister Nic Broadbent. The Crown is represented by senior counsel John Maconachie, Patrick Saidi and Adrian Andrews. A small team of solicitors support each side. By the time it is over the case will have cost many millions of dollars.

Roseanne is supported by a small group of women supporters including Mary Court, who first met her in 1996 and Sister Claudette Palmer, who met her in 1999 while she was a chaplain at Mulawa Women’s Prison in Sydney.

Mary Court (left) walking to Supreme Court on first day of malicious prosecution with Roseanne Beckett (centre).

Malicious Prosecution

Malicious prosecution is a tough gig. To be successful, Roseanne Beckett must prove on the balance of probabilities that the prosecuting detective Peter Thomas acted with malice and had no “reasonable or probable” cause to charge her.

Even if there is evidence that Peter Thomas has acted corruptly or even intimidated witnesses, unless Roseanne's team of lawyers can prove that there was no evidence on which he could have reasonably charged her, they could lose the case. This is a difficult task because there is a mass of charges, statements and other evidence that came into being 25 years ago that has the appearance of independence but must be linked back to the prosecuting officer, Thomas.

Roseanne was originally charged with 13 offences including possessing a pistol, attempting to poison her ex-husband Barry Catt, perjury, assaulting him and offering money for him to be killed. Nine charges went to trial, including possessing a pistol, attempting to poison and assault ex-husband Barry Catt, perjury and offering money for Catt to be killed. In 1991, she was convicted by a jury of eight charges and acquitted of one. In 2004, an inquiry conducted by acting Supreme Court judge Thomas Davison found that she had been framed by prosecution witnesses. He recommended that all charges be dismissed by the NSW Court of Criminal Appeal (NSW CCA). Instead, the NSW CCA acquitted her of the charge of possessing a gun, dismissed five convictions and upheld two convictions. The NSW Director of Public Prosecutions decided not to put Roseanne on trial again and so that terminated the proceedings against her in 2005.

At this point , the NSW government could have offered Roseanne an ex-gratia payment for the damage she had suffered. Such payments are made at the discretion of the Attorney General and compensate victims of government wrongdoing where it is impractical to seek compensation through court action. Instead DPP and Crown lawyers continued to maintain, as they have always done, that she was guilty of all charges. It certainly would have save millions of dollars to make an ex-gratia payment.

If Roseanne was to get any compensation, there was only one option open to her - a malicious prosecution case.

Malicious prosecution is a tort or a 'wrong' available to those who are the victim of groundless and unjustified proceedings .

Lawyers acting on behalf of Roseanne Catt lodged the claim in the NSW Supreme Court in 2008. So why has it taken six years for the trial to begin?

High Court Hiccup

In order to succeed in a malicious prosecution case, a plaintiff must prove that the prosecution ultimately terminated proceedings in her favour.

The Crown's first tactic was to argue that even though the NSW DPP had decided to drop the proceedings in the five cases that had been dismissed, this did not mean that those proceedings had terminated in her favour. It relied on a 1924 High Court case called David v Gell to argue that Roseanne must prove her innocence before she was in a position to sue. In Roseanne's case, this would have been very difficult to do because in many cases, it was her word against others rather than a matter of forensic evidence or alibis.

Last year, the High Court overruled Davis v Gell and found that a plaintiff is not required to further prove her innocence when bringing a claim for malicious prosecution if the prosecution has terminated in a way that is favourable to the plaintiff which the court found had occurred when the NSW DPP decided not to put her on trial again. A good summary of the High Court decision can be found on University of Melbourne lecturer Katy Barnett's High Court blog.

The Rule of Law Institute welcomed the decision with these words:

While Ms Beckett will still have to prove the other elements required for her damages claim, this is one less barrier for her and a refreshing streamlining of the law. It reduces the burden on people who cannot recover damages because they fall into the limbo of being found guilty, but having their appeal successfully upheld and the prosecution indefinitely stayed, after they have spent years in gaol

The High Court decision finally cleared the way for Roseanne's case to move forward. There were more skirmishes with the Crown refusing to produce internal documents about Peter Thomas on the grounds of privilege. I'll come back to these in future blogs.