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District Court 22 May 2026

Ahmed Ismail v State of New South Wales

[2026] NSWDC 156

Public order & justice offences

Citation: Ahmed Ismail v State of New South Wales [2026] NSWDC 156
Court: District Court of New South Wales
Date: 22 May 2026
Judge: Weber SC DCJ

Background

The plaintiff was arrested and charged with five criminal offences in April 2020, following allegations made by his former partner (the Complainant). Those allegations included that he had held a knife to the neck of their baby, kicked her cat, and sent a threatening text message via mobile phone. The charges covered offences ranging from common assault and armed with intent, through to stalking and using a carriage service to threaten serious harm.

The investigating officer, Senior Constable Hopkins, conducted telecommunications searches (known as iASK Requests) to verify the mobile number from which the threatening text message was allegedly sent. The results of those searches were exculpatory: they indicated the number could not be linked to the plaintiff in the way the prosecution alleged. Despite receiving this information well before the Local Court hearing, SC Hopkins did not disclose it to the court or to the plaintiff's legal representatives. The exculpatory evidence only came to light during SC Hopkins' cross-examination at the Local Court hearing.

All five charges were ultimately withdrawn and dismissed in December 2020. The plaintiff then brought proceedings in the District Court against the State of New South Wales, claiming damages for malicious prosecution and wrongful arrest/false imprisonment.

  • Whether the prosecution was initiated without reasonable and probable cause, satisfying one of the elements of malicious prosecution
  • Whether SC Hopkins acted with malice in bringing or maintaining the prosecution, in particular by concealing exculpatory telecommunications evidence
  • Whether the arrest was lawful under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), known as LEPRA, either because the arresting officer held a reasonable suspicion or was lawfully directed to make the arrest
  • The appropriate quantum of general damages and whether exemplary damages were warranted

Decision

Malicious prosecution. The court found that the two threshold elements of malicious prosecution were not in dispute: the prosecution had been initiated by the defendant, and it had terminated in the plaintiff's favour. The contested elements were malice and absence of reasonable and probable cause. The court applied the stringent standard of proof described in Briginshaw v Briginshaw and required by the serious nature of the cause of action, which demands cogent or strict evidence of impropriety.

The plaintiff's malicious prosecution case centred principally on the carriage service charge. The court found that SC Hopkins had received iASK Request results before the Local Court hearing that showed the mobile number used to send the threatening text message could not be positively associated with the plaintiff. Rather than disclosing this to the court or the plaintiff's lawyers, SC Hopkins allowed the charge to proceed. The court accepted that there may have been genuine initial uncertainty about the evidence, including the possibility of "spoofing" (a technique allowing messages to appear from a different number), but found that the uncertainty had been resolved well before trial. SC Hopkins' concealment of the exculpatory material went beyond poor police work and constituted malice.

False imprisonment/wrongful arrest. The court found that the arresting officer, Senior Constable Ryan, had been directed by SC Hopkins to make the arrest, bringing the arrest within section 99(2) of LEPRA, which permits arrest on direction. The court accepted that SC Hopkins himself held the requisite reasonable suspicion under section 99(1) at the time the direction was given. The false imprisonment claim therefore failed.

Damages. The court awarded general damages of $20,000 for malicious prosecution, accepting the defendant's submission that, in the absence of evidence of significant personal impact on the plaintiff during the period leading up to dismissal, the award should be modest. The court rejected the plaintiff's "sword of Damocles" argument, noting there was no evidence adduced to support the proposition that the ongoing proceedings had caused the plaintiff anxiety or concern. However, the court found exemplary damages were appropriate given SC Hopkins' deliberate concealment of exculpatory evidence, conduct deserving of denunciation, and ordered $25,000 under that head.

Orders Made

  • Judgment and verdict for the plaintiff against the defendant in the sum of $45,000.
  • The defendant to pay the plaintiff's costs.

Key Takeaways

  • The District Court confirmed that the standard of proof in malicious prosecution claims is onerous, requiring cogent or strict evidence of impropriety, consistent with the Briginshaw principle and the serious nature of the allegations involved.
  • An investigating officer's deliberate failure to disclose exculpatory evidence to the court or a defendant's legal representatives, where the officer had obtained that evidence before trial, can constitute malice sufficient to ground a malicious prosecution claim.
  • Where an arresting officer acts on a direction from a superior who holds the requisite reasonable suspicion under section 99(1) of LEPRA, the arrest is lawful under section 99(2) and a false imprisonment claim will fail, even where multiple charges follow that arrest.
  • Exemplary damages remain an available remedy in police misconduct cases and serve the purposes of denunciation, upholding the rule of law, and encouraging the State to prevent recurrence of reprehensible conduct, as confirmed by the Court of Appeal in State of New South Wales v Spedding [2023] NSWCA 180.
  • General damages for malicious prosecution will be modest where a plaintiff fails to adduce evidence of the personal impact of the prosecution during its pendency; assertions about anxiety or a "sword of Damocles" effect require evidentiary support.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99
- Criminal Code Act 1995 (Cth), s 474.15(2)
- Crimes Act 1900 (NSW), ss 61, 114(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Prevention of Cruelty to Animals Act 1979 (NSW), s 5(1)

Cases
- A v New South Wales (2007) 230 CLR 500; [2007] HCA 10
- Adams v Kennedy (2000) 49 NSWLR 78; [2000] NSWCA 152
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Hyder v Commonwealth [2012] NSWCA 336
- Landini v State of New South Wales [2008] NSWSC 1280
- McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 81-361
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
- New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46
- Saad v State of New South Wales [2016] NSWSC 1247
- State of New South Wales v Spedding (2023) A Crim R 519; [2023] NSWCA 180