State of New South Wales v Zreika [2012] NSWCA 37

The plaintiff/respondent in this instance was violently arrested for a shooting by the NSW Operational Training Unit (OUT), part of the State Protection Group in the presence of his father at his work. He subsequently lost his business, was refused bail initially, having to spend 2 months in custody. In addition, he incurred debt and legal costs in defending the criminal proceedings, which were withdrawn by the DPP once it was received by them.

The background was summarised as follows:

“The [respondent] was born on 30 January 1979 and is aged 32. On 20 July 2006 he was living with his parents in Greenacre, an outer suburb of Sydney, but staying the night with his girlfriend, who lived at North Parramatta. On that evening, a serious offence was committed in a home unit in George Street, Parramatta. A man called Thomas Neville was shot on the right side of his scrotum. Police were notified, and attended. Later that night the [respondent] went into a [Coles Express service station] store in Parramatta wearing a top similar to the one the shooter had worn. He was feeling despondent after an argument with his girlfriend, and was engaging in a bizarre monologue. He said aloud, while in the store, either that he had just killed, or felt like killing, ‘some cunt’, and that he had ‘had enough’. He was recorded on audio and video film while in the store. Although he did not fit the description of the shooter as described by witnesses, police decided to charge him. He had been in trouble with the police before, for armed robbery (nine years before) and deemed supply of drugs (seven years before). Because of his record for armed robbery, and the fact that a gun had been used in the new offence, police decided he might be too dangerous for detectives to arrest. So the investigating team brought in the State Protection Group, a specialist group of police who are experienced at dealing with violent and armed criminals.”

 

The State of NSW appealed the judgment of $304,556. The trial judge described the arresting officer Detective Constable Ryder (” DC Ryder”) as untruthful and who could not be relied upon for any matter of importance as opposed to the respondent/plaintiff who was described as trying his best to tell the truth. The appeal was partly allowed by reducing the amount of exemplary damages from $100,000 to $50,000.

The judgment helpfully summarises the law in respect of “reasonable suspicion” and malicious prosecution.

Reasonable suspicion is a term also used in the context search warrants [24] – [26]. Similar connotations are used in the term “reasonable ground” and notices to produce records (cf: 519 under the Workers’ Compensation and Rehabilitation Act 2003 – power to require information from certain persons)

Sackville AJA (with whom Macfarlan JA and Whealy JA concurred):

MALICIOUS PROSECUTION: DAMAGES

Principles

59.

There is no challenge to the finding of the primary Judge that the respondent had made out his case on malicious prosecution. The elements of the tort of malicious prosecution were stated in the joint judgment in A v State of New South Wales [2007] HCA 10; 230 CLR 500, at 502-503 [1], as follows:

“the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally … criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings were terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable cause.”

In addition, the plaintiff must prove damage: New South Wales v Landini [2010] NSWCA 157, at [20] per Macfarlan JA. In the present case, there is no challenge to the award of $75,000 as compensatory damages for malicious prosecution.

60.

A plaintiff who succeeds in an action for malicious prosecution will not necessarily receive either aggravated or exemplary damages. Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant’s wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett , at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett , at 647 [33]. [34].

61.

Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect ” detestation ” for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno , at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is ” conscious wrongdoing in contumelious disregard of another’s rights “: Gray v MAC , at 7 [14].

62.

Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett ; NSW v Landini , at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff’s rights by the police:

“should indicate … that the conduct of the [police] was reprehensible, [and] mark the court’s disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses … do not happen.”

Ibbett , at 653 [51], citing Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78, at 87, per Priestley JA.

63.

In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett , at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once.

64.

I endeavoured to summarise the effect of the authorities in New South Wales v Radford [2010] NSWCA 276, at [97], as follows (Beazley and Macfarlan JJA agreeing):

“These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff’s feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.”

 

Brisbane Barrister – David Cormack

 

 

 

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