Civil Litigation

McGirr & Associates has extensive experience securing favourable outcomes for clients in contested criminal hearings owing to the effective and vigorous advocacy of principal Paul FC McGirr.

The evidence in these proceedings is then able to be used to found civil proceedings against the NSW Police and other state authorities for improper or unlawful conduct including: wrongful arrest, false imprisonment, battery and malicious prosecution.

Many NSW Police fail to exercise their powers in a proper and lawful manner. For example, executing an arrest of an accused person is to be done as a last resort. That is the common law position and police can only do so without warrant in certain circumstances. Where there has been a finding that an arrest is unlawful, that may then enliven the possibility of a civil claim for damages. More damages may be recoverable where a person has been assaulted in the course of an unlawful arrest.

When the police choose to prosecute a person, the law says that they must have reasonable grounds for doing so. Where they commence criminal proceedings against an accused in order to deliberately cause harm, this is known as ‘malicious prosecution’. Although on its face, it may appear reasonably simple to establish malicious prosecution, it is often difficult to prove that police did not have a reasonable and probable cause or that they acted with malice. Indeed, it is a common misconception that incompetence or stupidity from investigating officers might amount to malicious prosecution, however as stated by the High Court in A v New South Wales [2007] HCA 10: ‘What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique motive”. That improper purpose must be the sole or dominant purpose actuating the prosecutor.’ Accordingly, mere mistreatment by the police will not meet the threshold for ‘malice’.

Through this process, McGirr & Associates, together with experienced counsel, have been able to secure monetary compensation for numerous clients.