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District Court 14 October 2010

Moses v State of New South Wales (No. 3)

[2010] NSWDC 243

Public order & justice offences
TORT HELD THAT THE OCCASION WAS PRIVILEGED HELD MALICE NOT ESTABLISHED WHETHER MALICE ESTABLISHED DAMAGES

Citation: Moses v State of New South Wales (No. 3) [2010] NSWDC 243
Court: District Court of New South Wales
Date: 14 October 2010
Judge(s): Gibson DCJ

Background

Two plaintiffs were arrested by NSW Police officers in George Street, Waterloo on 5 September 2008, during an undercover operation targeting a series of handbag robberies. Officers identified the first plaintiff as a suspect because he resembled the offender and was wearing a similar jumper. Both plaintiffs were taken into custody and detained at a police station.

The first plaintiff was subsequently charged with stealing from a person and with intending to commit an indictable offence while having a prior conviction. Those charges were maintained even after further robberies occurred and another person was arrested in connection with some of the offences.

Both plaintiffs brought proceedings against the State of New South Wales, claiming defamation arising from words spoken during the arrest, assault and battery, wrongful arrest and false imprisonment, and (in the first plaintiff's case) malicious prosecution.

  • Whether statements made by police officers during the arrest amounted to defamatory publications, and whether those publications were protected by qualified privilege at common law or under s 30 of the Defamation Act 2005 (NSW)
  • Whether any occasion of qualified privilege was defeated by malice
  • Whether the force used to apprehend the plaintiffs was unreasonable, constituting assault and battery
  • Whether the arrest and continued detention of each plaintiff amounted to wrongful arrest and false imprisonment
  • Whether the continuation of charges against the first plaintiff, after evidence emerged pointing to another offender, constituted malicious prosecution
  • Whether lack of reasonable and probable cause and malice were established for the malicious prosecution claim
  • What damages, including general, aggravated, and exemplary damages, were appropriate

Decision

Defamation: The court found that the words spoken by police officers during the arrest were published on an occasion of qualified privilege, both at common law and under s 30 of the Defamation Act 2005. The plaintiffs failed to establish that the privilege was defeated by malice. Judgment was entered for the State on both defamation claims.

Assault: The court held that the force used to apprehend the first plaintiff was unreasonable and awarded him $10,000. The second plaintiff's assault claim did not succeed. The court noted, for completeness, that had it found in the second plaintiff's favour on assault, it would have awarded $5,000.

False Imprisonment: Both plaintiffs succeeded on their false imprisonment claims. The court found that the circumstances of the arrest and continued detention at the police station were not lawfully justified. Each plaintiff was awarded $60,000.

Malicious Prosecution: The first plaintiff succeeded on his malicious prosecution claim. The court found that charges had been laid and maintained without reasonable and probable cause, and described the continuation of the second charge as particularly egregious. General and aggravated compensatory damages totalled $30,000, with a further $20,000 in exemplary damages awarded to mark the court's disapproval of the conduct and to signal to those responsible for police oversight that such abuses must be addressed. The total award for malicious prosecution was $50,000.

Orders Made

  • Judgment for the defendant on the defamation claim brought by the first plaintiff
  • Judgment for the defendant on the defamation claim brought by the second plaintiff
  • Judgment for the first plaintiff on the assault claim: $10,000
  • Judgment for the defendant on the assault claim brought by the second plaintiff
  • Judgment for the first plaintiff on the false imprisonment claim: $60,000
  • Judgment for the second plaintiff on the false imprisonment claim: $60,000
  • Judgment for the first plaintiff on the malicious prosecution claim: $50,000
  • Liberty to bring in short minutes of order reflecting agreed interest calculations on general and aggravated compensatory damages
  • Costs reserved, with liberty to apply on interest and costs

Key Takeaways

  • Statements made by police during the course of an arrest can attract qualified privilege at common law and under s 30 of the Defamation Act 2005, provided malice is not established, even where the arrest itself later proves to have been unlawful.
  • A lawful basis for arrest does not automatically justify the degree of force used; the first plaintiff's assault claim succeeded despite the defamation claims failing, illustrating that each cause of action turns on its own distinct elements.
  • False imprisonment can be established where police lack lawful justification for an arrest or continued detention, and both plaintiffs recovered substantial damages on this basis despite the defamation claims being dismissed.
  • In the context of malicious prosecution, continuing to prosecute charges against a person after evidence emerges pointing to a different offender can satisfy the requirement of lack of reasonable and probable cause.
  • Exemplary damages in malicious prosecution cases serve not only to express disapproval of the individual officers' conduct but also to communicate to those responsible for police oversight that adequate training and discipline are required to prevent recurrence. The District Court drew on the High Court's reasoning in New South Wales v Ibbett (2006) 229 CLR 638 in reaching that conclusion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94 and 546B
- Defamation Act 1974 (NSW), ss 13 and 17
- Defamation Act 2005 (NSW), ss 26, 30 and 33
- Evidence Act 1995 (NSW), s 140
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 201, 230 and 231

Key Cases:
- A v State of New South Wales (2007) 230 CLR 500
- Roberts v Bass (2002) 212 CLR 1
- New South Wales v Ibbett (2006) 229 CLR 638
- State of New South Wales v Landini [2010] NSWCA 157
- State of New South Wales v Hathaway [2010] NSWCA 184
- Bashford v Information Australia (2004) 218 CLR 366
- Sullivan v Moody (2001) 207 CLR 562
- Hussein v Chong Fook Kam [1970] AC 942
- Spicer v Holt [1977] AC 987
- R v Rondo [2001] NSWCCA 540
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Moses v State of New South Wales (No. 2) [2009] NSWDC 99