Citation: Zreika v State of New South Wales [2011] NSWDC 67
Court: District Court of New South Wales
Date: 1 July 2011
Judge: Judge Walmsley SC
Background
The plaintiff, a vehicle glazing business owner in his late twenties, was arrested in July 2006 in connection with a shooting in a Parramatta unit. Police linked him to the offence after he was captured on CCTV making ambiguous statements in a nearby store on the night of the incident. Despite not matching the physical description of the shooter provided by witnesses, police decided to charge him.
The arrest was carried out by the Operational Training Unit, a specialist police group, in a public area of Artarmon while the plaintiff was at work with his elderly father. The plaintiff alleged he was pushed to the ground, dragged, trodden on, and had a shotgun pointed at him. He immediately protested his innocence and requested an identification parade. He was charged with common assault, shooting at a person with intent to inflict grievous bodily harm, and malicious wounding.
The plaintiff was denied bail on two applications and spent over two months in custody. Bail was only granted after the Director of Public Prosecutions took over the prosecution and declined to oppose it. All charges were eventually withdrawn and formally dismissed on 25 January 2007. The plaintiff lost his business, incurred approximately $30,000 in debt, and spent over $23,000 on legal fees. He sued the State of New South Wales, which accepted vicarious liability for the acts of its police officers, for wrongful arrest (false imprisonment), battery, and malicious prosecution.
Legal Issues
- Whether police had reasonable grounds to arrest the plaintiff, such that the arrest was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Whether the force used during the arrest constituted a battery (trespass to the person)
- Whether police prosecuted the plaintiff maliciously and without reasonable and probable cause, satisfying the tort of malicious prosecution
- What damages, including aggravated and exemplary (punitive) damages, were appropriate
Decision
Wrongful arrest. The court found that police did not have reasonable grounds to arrest the plaintiff. The evidence linking him to the shooting was weak and, in some respects, based on inaccuracies police had introduced or failed to correct. Critically, the plaintiff did not match the physical description of the shooter. The court concluded the arrest constituted false imprisonment and awarded compensatory and aggravated damages.
Battery. The court accepted the plaintiff's account that unreasonable and unnecessary force was used during the arrest. The tactical unit's deployment and the physical treatment of the plaintiff, a man who posed no actual threat at the time, amounted to a battery. Damages of $10,000 were awarded on this count.
Malicious prosecution. This was the most significant finding. The court found that police prepared a misleading facts sheet, withheld exculpatory evidence from the plaintiff's lawyers (including evidence from a potential alibi witness and sightings of another person of interest), and maintained the prosecution in the face of mounting evidence pointing away from the plaintiff. The court found both malice and an absence of reasonable and probable cause. Substantial compensatory, aggravated, and exemplary damages were awarded on this count.
Damages. The court awarded a total of $304,556, broken down across all three causes of action. The exemplary damages component of $100,000 reflected the court's assessment of the seriousness of the police conduct, particularly the deliberate withholding of evidence and the preparation of a misleading facts sheet. Aggravated damages of $25,000 were awarded on the malicious prosecution count for the additional mental suffering caused by the manner in which the prosecution was maintained.
Orders Made
- Judgment for the plaintiff on all three pleaded causes of action
- Total damages of $304,556, comprising:
- Wrongful arrest (compensatory): $50,000
- Wrongful arrest (lost income): $500
- Wrongful arrest (aggravated): $10,000
- Battery: $10,000
- Malicious prosecution (compensatory): $75,000
- Malicious prosecution (exemplary): $100,000
- Malicious prosecution (aggravated): $25,000
- Defence costs and interest component: $29,356
- Economic loss: $5,000
- Counsel to be heard on interest and costs
Key Takeaways
- The District Court confirmed that a lawful arrest under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) requires objectively reasonable grounds; police suspicion that is unsupported by reliable evidence, or based on inaccurate information of police origin, will not suffice.
- Malicious prosecution requires both malice and an absence of reasonable and probable cause; the court found both elements were established where police withheld exculpatory evidence, prepared a misleading facts sheet, and continued the prosecution despite accumulating evidence pointing to the plaintiff's innocence.
- Exemplary (punitive) damages are available in cases of serious police misconduct; the $100,000 exemplary damages award reflected the court's condemnation of the deliberate concealment of evidence from the accused and his lawyers.
- Aggravated damages for malicious prosecution compensate for heightened mental suffering caused by the manner in which a defendant conducts the prosecution, not merely the fact of the prosecution itself.
- The Civil Liability Act 2002 (NSW) had no application to these proceedings, as was accepted by both parties, meaning the common law framework for trespass and malicious prosecution applied without statutory modification.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99(3), 231
- Law Reform (Vicarious Liability) Act 1983 (NSW), Part 4
- Bail Act 1978 (NSW), s 9D
- Civil Liability Act 2002 (NSW) (held inapplicable)
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Evidence Act 1995 (NSW), ss 114, 115
Key Cases
- A v New South Wales (2007) 230 CLR 500 (malicious prosecution)
- Ruddock v Taylor (2003) 58 NSWLR 269 (false imprisonment)
- Gray v Motor Accident Commission (1998) 196 CLR 1 (exemplary damages)
- Fox v Wood (1981) 148 CLR 438 (economic loss and impoverished plaintiffs)
- Glinski v McIver [1962] AC 726 (malicious prosecution)
- Briginshaw v Briginshaw (1938) 60 CLR 336 (standard of proof for serious allegations)
- George v Rockett (1990) 170 CLR 104 (reasonable grounds for arrest)
- Coyle v New South Wales [2006] NSWCA 95