Borton v State of New South Wales [2026] NSWSC 351

In Borton v State of New South [2026] NSWSC 351 Mr Borton (the plaintiff) successfully sued the State of New South Wales for malicious prosecution.

Background

In March 2020, Mr Everson called Triple Zero and reported gun shots from the plaintiff’s property hitting his parent’s shed.

The plaintiff was arrested and denied the allegations. He was charged with firing at a building with reckless disregard for safety (more serious charge) and not storing a firearm safely (less serious charge).

The plaintiff was denied bail and spent 21 days on remand. He was convicted on the less serious charge, but the more serious charge was withdrawn in September 2020.

The Court found that the plaintiff would not have been remanded on the less serious charge alone¹

False imprisonment

The plaintiff was unsuccessful in his claim for false imprisonment.

He claimed that his arrest was unlawful because there were no reasonable grounds for suspecting he was involved in the offence. The Court held the police were responding to a serious allegation, and the Detective’s suspicion at the time of arrest was based on several relevant factors.²

The plaintiff also claimed the police did not initially communicate the reason for his arrest. The Court disagreed and held that the plaintiff was rearrested minutes after his initial arrest and advised of the reasons.³

Malicious prosecution

The plaintiff was successful in his malicious prosecution claim.

The Court confirmed that malice can be implied if proceedings are commenced and maintained for an improper purpose and held that it is improper to keep a person in custody and maintain charges in circumstances where there is no evidence and in the hope of obtaining evidence.⁴

Whilst not raised in the judgment when the Court was considering malice; the Detective’s evidentiary statement incorrectly claimed that he had obtained statements from other members of the Everson family.

The evidence against the plaintiff did not change from the day he was arrested. Shortly after his remand, Forensics and Ballistics told the Detective that there was no evidence at the shed to support Mr Everson’s statement.⁵ The Court did not accept that there was reasonable and probable cause to continue the prosecution.⁶

Damages

The plaintiff claimed that he developed a psychological injury post-remand.

The defendant submitted that the plaintiff did not suffer a psychological injury and relied on comments the plaintiff made to another expert when seeking to re-obtain his firearms licence.⁷

Although “difficult to reconcile” the Court accepted evidence stating that the plaintiff suffered a psychological injury.⁸

The plaintiff was awarded general damages for his time spent in custody and his psychiatric injury.⁹

His Honour calculated the plaintiff’s economic loss taking into consideration that once the case was finalised the plaintiff’s symptoms would reduce to a level where he could engage in work.¹⁰

The Court awarded aggravated damages to account for the further shame and guilt felt by the plaintiff due to the defendant’s approach.¹¹

Importantly, His Honour also awarded exemplary damages in recognition of the fact that the plaintiff remained in custody even though the no new evidence had been obtained by police since at least 12 hours after his arrest.¹²

Authors: Jeremy King and Sam Moodie