Citation: Chen v State of New South Wales [2012] NSWDC 126
Court: District Court of New South Wales
Date: 17 August 2012
Judge: Judge Peter Johnstone
Background
Two plaintiffs, a woman and her mother, brought civil proceedings against the State of New South Wales arising from a police encounter at a Newtown real estate agency on 21 February 2008. The plaintiffs alleged that two police officers attended the agency in connection with a lease dispute and proceeded to physically remove, assault, and unlawfully arrest them in the street outside.
The plaintiffs' account was that the officers punched, kneed, and handcuffed the first plaintiff on the ground, while the second plaintiff was choked, pushed against a fence, and thrown to the ground. They further alleged continued assaults at Newtown Police Station and that they were subsequently charged with offences in a malicious prosecution. Those charges were ultimately dismissed in the Local Court in December 2008.
The State's version was diametrically different. The officers contended that the first plaintiff had refused a lawful direction to leave the premises, struck an officer when attempting to re-enter, resisted arrest with kicking and struggling, and repeatedly threatened to shoot the officers. The second plaintiff, according to the police account, intervened physically to obstruct the arrest. The officers maintained that all force used was reasonable and necessary in the circumstances.
Legal Issues
- Whether the arrests of both plaintiffs were lawful or constituted wrongful arrest
- Whether the plaintiffs were falsely imprisoned during their detention in the street and at Newtown Police Station
- Whether the officers committed assault and battery against the first plaintiff in the street and at the police station
- Whether the officers committed assault and battery against the second plaintiff in the street
- Whether the prosecution of the plaintiffs was malicious, in that the officers lacked reasonable and probable cause and acted with malice
Decision
The central question was one of credit: whose version of events did the court accept? Judge Johnstone rejected the plaintiffs' account and accepted the police version of events. The credibility assessment was shaped by photographic evidence taken at the scene by a third party, CCTV footage from the police station, and inconsistencies in the plaintiffs' testimony.
On wrongful arrest, the court found that the first plaintiff had been lawfully directed to leave inclosed lands (the real estate agency) and had refused to comply. Her subsequent conduct, including striking an officer, provided lawful grounds for arrest. The second plaintiff's arrest was also found to be lawful, given her physical intervention to obstruct the officers in the execution of their duties.
On the assault and battery claims, the court found that the force used by the officers was reasonable and necessary. The knee to the first plaintiff's back was a legitimate restraint technique applied while she resisted handcuffing. The contact with the second plaintiff, including holding her against a fence, was similarly found to fall within what was reasonably necessary to manage a volatile situation. The allegations of more serious assaults at the police station were not established on the evidence.
On malicious prosecution, the court found that the officers had acted on objective grounds with reasonable and probable cause in instituting the charges. There was no basis to infer malice. Applying the High Court's analysis in A v State of New South Wales [2007] HCA 10, the claim failed entirely.
Orders Made
- Verdict for the defendant on each cause of action, and judgment for the defendant against each plaintiff
- The plaintiffs ordered to pay the defendant's costs (with the court indicating it would entertain any application for a differential costs order)
Key Takeaways
- The District Court's findings turned entirely on credibility, with photographic and CCTV evidence proving decisive in preferring the police account over the plaintiffs' version.
- A lawful arrest requires reasonable and probable cause; where an officer has such cause and the plaintiff has engaged in conduct that justifies arrest, claims of wrongful arrest will fail.
- Force used in effecting an arrest will not constitute assault or battery where it is reasonable and necessary in the circumstances, including where a person actively resists restraint.
- Malicious prosecution requires proof that the prosecution was instituted without reasonable and probable cause and with malice; the court confirmed that malice cannot simply be inferred from the rejection of a defendant officer's evidence where the court in fact accepts that evidence.
- In dismissing all seven causes of action, the District Court applied the principle from A v State of New South Wales [2007] HCA 10 that officers who act professionally on objective grounds satisfy the reasonable and probable cause standard for prosecution.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Civil Liability Act 2002 (NSW), ss 52, 53, 54
- Civil Procedure Act 2005 (NSW)
- Inclosed Lands Protection Act 1901 (NSW)
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases:
- A v State of New South Wales [2007] HCA 10
- Darcy v State of New South Wales [2011] NSWCA 413
- Christie v Leachinsky (1946) 1 KB 124 (House of Lords)
- State of New South Wales v Williamson [2011] NSWCA 183