3 minute read
LEGAL
RICHARD YATES
Partner Tindall Gask Bentley Lawyers
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LEGAL
What is malice, legally speaking?
LAWYERS LOVE SPEAKING in code. It’s drilled into us at Law School, and we graduate thinking differently about everyday words and what they actually mean. The legal system is peppered with words that either aren’t used in everyday speech, or are commonly used but mean something different in the law.
I’m reminded of a client I had years ago that was charged with an assault “in circumstances of aggravation” because a child was present at the time. There was never a doubt my client was going to plead guilty to the offence, but when I discussed the charge with him, he looked at me puzzled and said: “I wasn’t aggravated at all, it was the other guy carrying on before I hit him to shut him up”. Whether I smirked or not is a detail I’ll leave to be lost to history, but the exchange made me realise that I was using a term that I had wrongly assumed was being understood in the context it was used in.
Working as a police union lawyer, the word “malice” continually comes up. The effect is often the difference between a crime of official corruption verses a disciplinary breach of policy, or the difference between no civil liability on the part of a police officer
versus potential concurrent liability with the State or even individual liability on the police officer’s part. It’s also rife in Defamation law where, for example, a report made to police about an alleged crime is only defamatory if the report is false and made with malice.
In the case of Cunningham v Traynor [2016] WADC 168, WA District Court Judge Davis discussed the concept of “malice” in the context of the tort of malicious prosecution and said:
In relation to the element of malice… the plaintiff must establish that the sole or dominant purpose of the defendant was an improper purpose, ie a purpose other than the proper invocation of the criminal law. Examples of improper purposes include spite or ill will, to punish the accused, and to stop a civil action brought by the accused against the prosecutor. However it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked.
Later in the judgment, Her Honour discussed malice in relation to the tort of battery, i.e. a civil assault, and found that malice might be proved by proof of “anger and spite” and “pique and ill will”.
There is overlap between what most people would assume malice is, i.e. something motivated by spite or illwill, and the wider concept of malice in the law. Cases other than Cunningham explain that malice can be proved by showing a public officer knew they didn’t have the legal authority to do something causing damage and did so anyway.
Policing inherently involves doing things that aggravates people. Depriving people of their liberty, or moving people on from places of entertainment, or putting them before Courts to be tried for alleged crimes understandably upsets people.
Criminal and civil law has little criticism of police officers when they do these things according to the powers and duties and functions of police officers vested in them by law. Problems start to arise when Courts find that the thing or things were done unlawfully and were motivated by something other than the proper invocation of the law.
Malice will continue to come up in the work us police union lawyers do.
What assists us in defending Members accused of malicious acts are often things like Body Worn Camera footage, good records and notes, a working understanding of the powers being exercised at the relevant time, and justification for the exercise of those powers in any given case. That’s true even if the Member happens to be incorrect about the law or the basis of the power at the time.
Given the “good faith” civil liability protection in section 137 of the Police Act 1892, Members are entitled to make errors and mistakes; we’re all human.
The risk to the Member increases when if the act was done with malice, understood in the legal sense.
