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District Court 10 June 2015

Nash v State of New South Wales

[2015] NSWDC 144

Assault & violence
TORT GENERAL DAMAGES AGGRAVATED DAMAGES EXEMPLARY DAMAGES.

Citation: Nash v State of New South Wales [2015] NSWDC 144
Court: District Court of New South Wales
Date: 10 June 2015
Judge: Gibson DCJ

Background

The plaintiff was a 53-year-old real estate agent who, on the evening of 13 October 2011, drove approximately 150 metres from a golf club to his home in Shelly Beach, NSW. A police officer observed him leaving the club's car park and followed him. Within that very short distance, the officer activated his lights and sirens.

The officer approached the plaintiff's property, called out that he was under arrest, entered the premises, took hold of the plaintiff, and tackled him to the ground. The plaintiff was charged with driving under the influence of alcohol or drugs under the Road Transport (Safety and Traffic Management) Act 1999 (NSW), and with resisting an officer in execution of duty under s 546C of the Crimes Act 1900 (NSW). Both charges were dismissed by the Wyong Local Court on 18 May 2012.

The plaintiff then brought proceedings in the District Court against the State of New South Wales, claiming damages for unlawful arrest, assault and battery, and malicious prosecution. The events occurred in daylight, in a quiet suburban street, with no emergency or danger present, and the plaintiff was neatly dressed and presented as the professional he was.

  • Whether the arrest was lawful, including whether the arresting officer complied with the notice requirements under s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
  • Whether the officer had reasonable grounds under s 99 of LEPRA to arrest the plaintiff without a warrant
  • Whether the physical force used constituted unlawful assault and battery
  • Whether the elements of malicious prosecution were established, including absence of reasonable and probable cause and the presence of malice, particularly in light of exculpatory evidence obtained by police from the licensed premises but withheld during the criminal proceedings
  • Whether aggravated and/or exemplary damages were warranted across any or all of the causes of action

Decision

The District Court found in favour of the plaintiff on all three causes of action. The court was satisfied, applying the civil standard under s 140 of the Evidence Act 1995 (NSW) and the approach in Briginshaw v Briginshaw, that the arrest was unlawful. The officer entered the plaintiff's home address without knowledge that it was his residence, the plaintiff had minimal warning he was being followed given the extremely short distance travelled, and the required LEPRA notices were not properly given. The court found the officer lacked the lawful justification necessary to arrest the plaintiff in the manner he did.

On assault and battery, the court found that the physical force applied, including tackling the plaintiff to the ground, pinning him with knees, and threatening him with capsicum spray and handcuffs, was not justified. The defendant's admission that the plaintiff was taken to the ground was significant. The court rejected the defendant's contention that only reasonable force was used.

The malicious prosecution claim succeeded on the basis that the prosecution lacked reasonable and probable cause and was pursued with malice. A critical feature of this finding was that police had obtained exculpatory evidence from the licensed premises, being footage or records from the golf club, and that evidence was withheld during the criminal proceedings. The charges were ultimately dismissed. The court found the dominant purpose of the prosecution was not the proper upholding of the criminal law.

On aggravated damages, the court awarded them across all three causes of action, reflecting the conduct of the defendant that aggravated the harm to the plaintiff. However, the court declined to award exemplary damages on the basis that robust litigation conduct by the defendant, including cross-examination about the plaintiff's prior criminal history and alleged reputation for drunkenness, did not on its own reach the threshold required for exemplary damages.

Orders Made

  • Judgment for the plaintiff in the total sum of $124,958.80, comprising: assault and battery (including aggravated damages) $25,000; wrongful arrest (including aggravated damages) $25,000; malicious prosecution (including aggravated damages) $70,000; and special damages (medical and prosecution costs) $4,958.80
  • Liberty to the parties to bring in short minutes of order reflecting the mathematically agreed sum for judgment, including any claim for interest
  • Defendant to pay the plaintiff's costs
  • Liberty to apply in relation to interest and costs
  • Exhibits retained for 28 days

Key Takeaways

  • The District Court found that all three causes of action, unlawful arrest, assault and battery, and malicious prosecution, were established where police failed to give proper LEPRA notices, used disproportionate physical force, and pursued a prosecution while withholding exculpatory evidence.

  • Absence of emergency conditions, such as darkness, danger, or urgency, was a relevant contextual factor the court weighed when assessing whether the officer's conduct was justified. The quiet suburban setting and clear daylight visibility counted against the defendant on the reasonableness question.

  • Under the malicious prosecution analysis, the withholding of exculpatory material obtained from the licensed premises was central to the court's finding of both absence of reasonable and probable cause and malice.

  • Aggravated damages were awarded across all three heads of liability, but robust adversarial litigation conduct alone, including cross-examination designed to impugn the plaintiff's character, did not meet the threshold for exemplary damages.

  • Where a plaintiff's special damages for medical expenses and legal costs incurred in defending the criminal prosecution were not challenged on mathematical or causative grounds, the court allowed them in full.

Legislation and Cases Referenced

Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 114–117, 201, 230, 231
- Crimes Act 1900 (NSW), ss 58, 546C
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 12, 13
- Civil Liability Act 2002 (NSW), s 3B
- Evidence Act 1995 (NSW), s 140
- Civil Procedure Act 2005 (NSW), s 63
- Police Act 1990 (NSW), ss 3, 6
- Liquor Act 2007 (NSW)

Cases:
- A v New South Wales (2007) 230 CLR 500
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Kuru v New South Wales (2008) 236 CLR 1
- Christie v Leachinsky [1947] AC 573
- Martin v Watson [1996] AC 74
- Hamod v New South Wales [2011] NSWCA 375
- Coyle v State of New South Wales [2006] NSWCA 95
- Houda v State of New South Wales [2005] NSWSC 1053
- McCarthy v New South Wales [2015] NSWCA 153
- Carter v Walker (2010) 32 VR 1
- Davis v Gell (1924) 35 CLR 275
- Landini v State of New South Wales [2008] NSWSC 1280