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Supreme Court 16 December 2003

Nye v State of New South Wales & ors

[2003] NSWSC 1212

Public order & justice offences
TORT MALICIOUS PROSECUTION IMPROPER MOTIVE MODE OF PROOF WRONGFUL ARREST AND FALSE IMPRISONMENT ONUS OF PROOF

Citation: Nye v State of New South Wales & ors [2003] NSWSC 1212
Court: Supreme Court of New South Wales, Common Law Division
Date: 16 December 2003
Judge(s): O'Keefe J

Background

The plaintiff was arrested at his home in Upper Colo on 24 July 1991 in a large-scale police operation involving up to 40 officers, a helicopter, automatic weapons, and pump-action shotguns. He was charged with the murder of a man shot at Randwick in May 1991, along with two charges of conspiracy to supply cannabis resin. He remained in custody from his arrest until his acquittal on all charges on 10 November 1992.

The plaintiff commenced proceedings against the State of New South Wales, several individual police officers, and the Director of Public Prosecutions (DPP). He alleged that his arrest was unlawful, and that the prosecution was both brought and maintained without reasonable and probable cause and with malice.

The matter proceeded over approximately 75 hearing days. Judgment was expedited after medical evidence established that the plaintiff had been diagnosed with mesothelioma and had a life expectancy of weeks at most.

  • Whether the plaintiff's arrest on 24 July 1991 was lawful under s 352(2) of the Crimes Act 1900 (NSW)
  • Whether the defendants had reasonable and probable cause to initiate and maintain the murder and conspiracy prosecutions
  • Whether the defendants acted with malice, including by proving malice via the "indirect route" (inferring improper motive from circumstances)
  • Whether the DPP could be liable for malicious prosecution, including by reference to internal documents produced on subpoena
  • How damages should be assessed across the claims, including aggravated and exemplary damages
  • Which individual defendants bore liability, and the extent of the State's vicarious liability

Decision

O'Keefe J found in favour of the plaintiff on both the malicious prosecution claim and the wrongful arrest and false imprisonment claim, but found in favour of two of the individual defendants, Popplewell and Hawley.

On wrongful arrest, the court found that the arrest lacked lawful justification under the relevant statutory power. The manner of the arrest, involving an overwhelming show of force at a home where the plaintiff lived with his wife and at least four children, was characterised as excessive and an "overkill" in the circumstances.

On malicious prosecution, the court accepted that the plaintiff had established both the absence of reasonable and probable cause and the presence of malice. In relation to the defendant Gordon, malice was inferred from the totality of the circumstances surrounding the prosecution through the "indirect route" endorsed by the High Court of Australia, rather than by direct evidence of improper motive. In relation to the DPP, the existence of improper motive was supported additionally by internal documents tendered without objection at trial, after an unsuccessful application for leave to appeal against their earlier disclosure.

Damages were assessed across three heads: compensatory, aggravated, and exemplary. The court awarded $200,000 in aggravated damages (split equally between the two claims) and $750,000 in exemplary damages (apportioned 75% to malicious prosecution and 25% to wrongful arrest and false imprisonment). The exemplary damages award reflected the court's strong disapproval of the defendants' conduct and its view that a substantial sum was necessary to cause notice to be taken of the wrongs done.

Orders Made

  • Verdict of $947,500 against Gordon, the DPP, and the State of New South Wales on the malicious prosecution claim, comprising:
  • $100,000 for economic loss
  • $60,000 interest on economic loss
  • $100,000 compensation for imprisonment
  • $100,000 (50%) of aggravated damages
  • $25,000 (proportionate share) for psychiatric injury
  • $562,500 (75%) of exemplary damages
  • Verdict of $387,500 against Gordon, Barnett, and the State of New South Wales on the wrongful arrest and false imprisonment claim, comprising:
  • $25,000 for the arrest and detention on 24 July 1991
  • $75,000 (proportionate share) for psychiatric injury
  • $100,000 (50%) of aggravated damages
  • $187,500 (25%) of exemplary damages
  • Total award: $1,335,000, for which the State of New South Wales is vicariously liable
  • Verdicts in favour of defendants Popplewell and Hawley
  • Gordon, Barnett, the DPP, and the State of New South Wales ordered to pay the plaintiff's costs
  • No costs order in favour of or against Popplewell and Hawley
  • The plaintiff granted liberty to enter judgment forthwith

Key Takeaways

  • Malice in a malicious prosecution claim can be established through the "indirect route," by showing that the circumstances of the prosecution are explicable only by imputing an improper or wrong motive to the prosecutor, without requiring direct evidence of that motive.
  • A court may draw on internal documents of the DPP, where privilege has been determined not to apply, as evidence of improper motive in a malicious prosecution claim against that office.
  • Exemplary damages in tort remain available where a defendant's conduct warrants marked judicial disapproval; the Supreme Court awarded $750,000 in exemplary damages here, allocated across two separate tortious claims against different defendants.
  • The manner of an arrest, and not only its legal basis, is relevant to the assessment of compensatory and aggravated damages for wrongful arrest and false imprisonment; an excessive show of force in circumstances that did not warrant it was found to constitute part of the compensable wrong.
  • Vicarious liability of the State extended across both the wrongful arrest and malicious prosecution verdicts, covering the conduct of the individual police officer defendants and the DPP.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 352(2)
- Evidence Act 1995 (NSW) s 165
- Justices Act 1902 (NSW) s 41(6)
- Supreme Court Act 1970 (NSW) s 94

Key Cases:
- Abrath v North Eastern Railway Co (1883) 11 QBD 440
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Broome v Cassell & Co [1972] AC 1027
- George v Rockett (1990) 170 CLR 105
- Gray v Motor Accident Commission (1998) 196 CLR 1
- Harris v Digital Pulse Pty Limited (2003) 56 NSWLR 298
- Hussien v Chong Fook Kam [1970] AC 942
- Jones v Dunkel (1959) 101 CLR 298
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
- Rejfek v McElroy (1965) 112 CLR 517
- Rooks v Barnard [1964] AC 1129
- Trobridge v Hardy (1955) 94 CLR 147
- Uren v John Fairfax Pty Ltd (1966) 117 CLR 118
- XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448