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District Court 21 August 2009

Charara v New South Wales

[2009] NSWDC 263

Public order & justice offences
TORTS POLICE TORT CLAIMS ON APPEAL CONVICTIONS QUASHED ELEMENTS NECESSARY FOR EACH COUNT ONUS TO ESTABLISH RESTS ON PLAINTIFF DAMAGES

Citation: Charara v New South Wales [2009] NSWDC 263
Court: District Court of New South Wales
Date: 21 August 2009
Judge(s): Hungerford ADCJ

Background

In the early hours of 19 February 2004, two police constables attended a residential unit complex at Brighton-le-Sands in response to a noise complaint about loud music coming from a garage. The plaintiff, a resident of the complex, was arrested at the scene. He was taken to St George Police Station and charged with assault an officer in the execution of duty, resist an officer in the execution of duty, and failure to comply with a noise abatement direction under the Protection of the Environment Operations Act 1997.

The plaintiff was convicted by a magistrate at Sutherland Local Court in August 2004, but successfully appealed to the District Court. Chief Judge Blanch quashed all three convictions, though no party in the subsequent civil proceedings relied upon his Honour's reasons for doing so.

Over four years after the successful appeal, the plaintiff commenced civil proceedings against the State of New South Wales (as vicariously liable for the conduct of the two officers) as well as the officers individually. He alleged wrongful arrest, assault, false imprisonment and malicious prosecution, and sought general, aggravated and exemplary damages, together with the costs of defending the criminal charges.

  • Whether the plaintiff had established the elements of wrongful arrest, including the absence of reasonable and probable cause.
  • Whether the plaintiff had established the tort of assault arising from the manner in which the officers physically handled and restrained him.
  • Whether the plaintiff had established false imprisonment during his detention from arrest until bail was granted at approximately 12.30pm on 19 February 2004.
  • Whether the plaintiff had established malicious prosecution, including the requirement of malice and absence of reasonable and probable cause.
  • Whether the individual officers should remain as defendants given the State's concession of vicarious liability.
  • What costs order was appropriate given an unaccepted offer of compromise made on 25 June 2009.

Decision

The court entered a verdict and judgment for the State of New South Wales on all counts. The plaintiff bore the onus of establishing each element of each cause of action, and the court found he had not discharged that onus on the evidence. The disputed factual account of what occurred in and around the garage was central to the outcome, and the court preferred the account given by or consistent with the defendant's evidence.

On the malicious prosecution count, the court applied the well-established requirement that a plaintiff prove the prosecution was instituted without reasonable and probable cause and with malice. The mere fact that convictions were later quashed on appeal did not, of itself, satisfy those elements.

At the outset of the hearing, the court dismissed the statement of claim against the two individual officers. Under sections 9B and 9D of the Law Reform (Vicarious Liability) Act 1983, a tort claim against a police officer may not be brought directly where the Crown concedes vicarious liability. Because the State made that concession, the court was required by statute to dismiss the claims against the officers themselves, and the proceedings continued against the State alone.

On costs, the State's solicitors had made a formal offer of compromise on 25 June 2009 to pay the plaintiff $50,000, open for acceptance until 30 June 2009. The plaintiff did not accept it. The court accepted that the offer was made in accordance with the rules and in plain terms. Accordingly, ordinary costs were ordered up to 25 June 2009, with indemnity costs applying from 26 June 2009.

Orders Made

  • Verdict and judgment for the first defendant (State of New South Wales) against the plaintiff on the action.
  • Plaintiff to pay the first defendant's costs up to 25 June 2009 on the ordinary basis, and from 26 June 2009 on an indemnity basis.
  • Exhibits to remain with the file and be returned after 28 days on application to the Registrar.
  • The court noted the earlier order of 2 July 2009 dismissing the statement of claim against the second and third defendants (the individual officers).

Key Takeaways

  • A successful criminal appeal does not automatically establish the elements of wrongful arrest or malicious prosecution in subsequent civil proceedings. The plaintiff must independently prove each element, including absence of reasonable and probable cause and the presence of malice.
  • Under sections 9B and 9D of the Law Reform (Vicarious Liability) Act 1983, where the Crown concedes vicarious liability for alleged police torts, the court is required to dismiss any claim brought directly against the individual officers. The action proceeds solely against the Crown.
  • The onus of proof in police tort claims rests squarely on the plaintiff throughout. Evidence that events were genuinely disputed was enough, on the facts here, to defeat claims that were not sufficiently substantiated.
  • A formal offer of compromise that complies with the court's rules triggers indemnity costs consequences if not accepted, even where the plaintiff contends there were collateral complications affecting the settlement context.
  • Delay in commencing civil proceedings, while not necessarily fatal to the claim, was noted by the court: more than four years elapsed between the quashing of the convictions and the filing of this action.

Legislation and Cases Referenced

Legislation:
- Civil Procedure Act 2005 (NSW), s 64
- Crimes Act 1900 (NSW), ss 58, 59(1), 61
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 114, 230
- Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8(1), 9B(2) and (3), 9D(1)(b)
- Protection of the Environment Operations Act 1997 (NSW), ss 222, 224, 276(a), 277(1)(a), 277(4), 283
- Protection of the Environment Operations (Penalty Notices) Regulation 2004, Sch 1

Cases:
- A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
- Attorney-General for State of New South Wales v Bar-Mordecai [2009] NSWSC 396
- Director of Public Prosecutions v Carr (2002) 127 A Crim R 151
- Fleet v District Court of New South Wales [1999] NSWCA 363
- Hathaway v State of New South Wales [2009] NSWSC 116
- Jones v Dunkel (1959) 101 CLR 298
- Wilson v Director of Public Prosecutions [2002] NSWSC 935