Recent Cases

State of New South Wales v Madden [2024] NSWCA 40 (29 February 2024) (Bell CJ, Leeming and Stern JJA)


Catchwords:


APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State’s submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial

TORTS – Trespass to the person – Battery – Whether stopping and detaining of the Respondent was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether Respondent was “stopped” – Where small period of time between initial “stopping” and time at which the Respondent was told she would be searched – Where Respondent was not physically constrained and had a limited ability to walk around – Whether police had a suspicion on reasonable grounds that any of the circumstances in s 21 existed – Where primary judge made adverse credit findings in relation to police officer’s evidence as to the matters that informed his suspicion

TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether Respondent’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether police officer suspected on reasonable grounds that the Respondent had committed an offence – Where a person other than the Respondent was carrying a bag which contained a knife – Where primary judge made adverse credit findings in relation to police officer’s evidence as to his belief that the Respondent was carrying the bag

TORTS – Trespass to the person – False imprisonment – Whether s 43A of the Civil Liability Act 2002 (NSW) applied to exclude any liability arising from the conduct of the Appellant – Whether s 3B(1)(a) applied to exclude the operation of s 43A – Whether there was an intentional act done with intent to cause injury or death – Whether deprivation of liberty falls within the definition of “injury”

TORTS – Malicious prosecution – Whether charges were brought against the Respondent without reasonable and probable cause and with malice – Where police officer made repeated references to his previous interactions with the Respondent and omitted exculpatory material from the Facts Sheet including that the Respondent was not holding the handbag in which a knife and various items of new male clothing were found

TORTS – Malicious prosecution – Damages – Whether award of damages included compensation for custody that was not a natural and probable consequence of the prosecution – Whether causal connection between the charges laid against the Respondent and the Respondent’s detention severed by the refusal of the Respondent’s bail application or by the revocation of her parole

TORTS – Damages – Whether award of exemplary damages excessive – Whether primary judge took into account damages and aggravated damages awarded under each head of damage