Citation: Madden v The State of New South Wales [2022] NSWDC 647
Court: District Court of New South Wales
Date: 16 December 2022
Judge: Fitzsimmons SC DCJ
Background
On 30 December 2019, the plaintiff was walking with a companion on Evan Street, South Penrith when members of the NSW Police Proactive Crime Group stopped, searched and detained her. A knife was found in a bag carried by her companion. Shortly after, the plaintiff was arrested for the summary offence of custody of a knife in a public place and was subsequently involved in a physical altercation with police before being transported to Mount Druitt Police Station.
The plaintiff was charged with three offences, refused bail and remanded in custody. A bail application the following day at Parramatta Local Court was unsuccessful. She remained in custody until June 2020, when bail was granted. On 28 October 2020, a magistrate at Penrith Local Court dismissed all charges.
The plaintiff then brought civil proceedings against the State of New South Wales, claiming damages for false imprisonment, assault, battery and malicious prosecution. The State denied all claims. A claim for misfeasance in public office was not pressed at hearing.
Legal Issues
- Whether the plaintiff was falsely imprisoned from the moment she was first stopped by police, prior to being told she would be detained for a search
- Whether, once informed she would be detained for a search, the detention and search were lawful under section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
- Whether the plaintiff's arrest was lawful under section 99 of LEPRA
- Whether physical contact by police officers, including a subsequent search by one officer, was lawful or constituted assault and battery
- Whether section 43A of the Civil Liability Act 2002 (NSW) applied to limit liability
- Whether the plaintiff was subjected to malicious prosecution
- The appropriate quantum of damages, including aggravated and exemplary damages
Decision
False imprisonment and unlawful arrest: The court found that the plaintiff was subjected to false imprisonment. The initial stop and the subsequent detention were not carried out in accordance with the legal requirements of LEPRA, including the obligation to inform the plaintiff of the reason for the stop. The arrest under section 99 of LEPRA was also found to be unlawful. As a consequence, the physical contact flowing from the unlawful detention, including the application of handcuffs and the restraint of the plaintiff to remove a necklace, constituted assault and battery.
Search: The court examined whether a search conducted by Senior Constable Munt constituted a strip search. This formed part of the broader finding that the plaintiff was subjected to unlawful physical contact during a period of false imprisonment.
Civil Liability Act: The court considered whether section 43A of the Civil Liability Act 2002 (NSW), which applies a higher threshold for liability where a defendant is exercising a special statutory power, was engaged. The court's findings on this point are relevant to the scope of the State's liability for police conduct carried out under LEPRA powers exercised unlawfully.
Malicious prosecution: The court found that the prosecution of the plaintiff was malicious. Central to this finding was the conduct of the informant officer, Senior Constable Darnton, particularly in connection with the preparation of the Facts Sheet used at the bail hearing. The court accepted that the Facts Sheet contained grossly inaccurate information, that the officer lacked reasonable and probable cause, and that the prosecution was driven by malice rather than genuine belief in the plaintiff's guilt. The court observed that Darnton adopted a contemptuous attitude toward the Local Court process, and the training materials on the preparation of Facts Sheets made plain that such documents must be accurate. All three charges, including custody of a knife in a public place, goods in custody reasonably suspected of being stolen, and resisting an officer in execution of duty, were examined separately on the question of reasonable and probable cause.
Damages: The court awarded a total of $308,000 in damages before interest. General damages for malicious prosecution were assessed at $150,000, reflecting the seriousness of the prosecution and the plaintiff's extended period in custody. Exemplary damages of $75,000 were awarded for malicious prosecution, with the court emphasising the systemic threat posed by inaccurate Facts Sheets to the proper functioning of bail proceedings. Exemplary damages were also awarded for false imprisonment and battery. Interest of 2% per annum for three years was applied to $200,000 of the total sum, bringing the final judgment to $320,000.
Orders Made
- Verdict and judgment for the plaintiff in the sum of $320,000
- The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered
- The exhibits may be returned
- Liberty to apply on 7 days' notice if further orders are required
Key Takeaways
- The District Court confirmed that failure to comply with the procedural requirements of LEPRA when stopping and detaining a person, including the obligation to state the reason for a stop, can render the entire detention unlawful and give rise to claims for false imprisonment and trespass to the person.
- Where police powers under LEPRA are exercised unlawfully, section 43A of the Civil Liability Act 2002 (NSW) does not operate to shield the State from liability in the ordinary way that provision might apply to the lawful exercise of special statutory powers.
- A malicious prosecution finding requires the court to be satisfied that the prosecution lacked reasonable and probable cause and was actuated by malice, including the absence of genuine belief in the plaintiff's guilt. The standard of proof in civil proceedings, heightened by the gravity of the allegations under Briginshaw v Briginshaw principles, was addressed in the court's reasoning.
- Inaccurate Facts Sheets submitted to support bail refusal can form part of the factual foundation for a malicious prosecution claim, particularly where the officer responsible is the informant and the inaccuracies materially misrepresent the case against the accused.
- Exemplary damages in cases of malicious prosecution by police are available where conduct demonstrates a contemptuous disregard for legal process, and the court assessed them at $75,000 in this case, with further exemplary damages awarded separately for false imprisonment and battery.
Legislation and Cases Referenced
Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 27(1), 99, 202
- Civil Liability Act 2002 (NSW), pt 2, ss 3B(1)(a), 11, 43A
- Crimes Act 1900 (NSW), ss 58, 527C
- Summary Offences Act 1988 (NSW), s 11C
- Criminal Procedure Regulation 2017 (NSW), reg 25
- Evidence Act 1995 (NSW), s 140
- Legal Profession Act 2004 (NSW), ss 337(1), 338(1)
- Bail Act 2013 (NSW), s 31
Cases:
- A v State of New South Wales (2007) 230 CLR 500
- Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 432
- Beckett v State of New South Wales [2015] NSWSC 1017
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Coleman v Power (2004) 220 CLR 1
- Collins v Wilcock [1984] 1 WLR 1172
- Croucher v Cachia [2016] NSWCA 132
- Dowse v State of New South Wales [2012] NSWCA 337
- George v Rockett (1991) 70 CLR 104
- Hrdavec v State of New South Wales [2022] NSWCA 52
- Hussien v Chong Fook Kam [1970] AC 942
- Hyder v Commonwealth of Australia [2012] NSWCA 336
- Jankovic v Director of Public Prosecutions [2020] NSWCA 31
- MBP (SA) Pty Limited v Gogic (1991) 171 CLR 57
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
- Fred Saad and Ors v State of New South Wales [2016] NSWSC 1247
- Houda v NSW [2005] NSWSC 1053