Allan Frederick Hathaway v State of New South Wales

Allan Frederick Hathaway initiated proceedings against the State of New South Wales, claiming damages for assault and malicious prosecution. The dispute centres on a series of events where Hathaway was allegedly assaulted by police officers during an arrest and subsequently prosecuted for criminal offences which were later dismissed. The case was heard in the Supreme Court of New South Wales.

The court had to determine several legal issues. Firstly, whether Hathaway had established the tort of assault against the police officers. Secondly, if the State had maliciously prosecuted Hathaway, which requires proving malice, absence of probable cause, and that the prosecution was improper. The court also needed to assess Hathaway's credibility and the implications of his decision not to call certain witnesses.

In its decision, the court found that Hathaway had not proved the tort of assault. The evidence did not support the claim that he was assaulted beyond a reasonable doubt. Regarding the malicious prosecution claim, the court held that the decision to prosecute was based on reasonable and probable cause, given the information available to the prosecutor at the time. The court also noted that Hathaway's failure to call certain witnesses, as per the rule in Jones v Dunkel, meant that adverse inferences could be drawn about his case. Consequently, the court dismissed Hathaway's claims for compensatory and exemplary damages. The court found no basis for the malicious prosecution claim, as the prosecution was justified and not carried out with malice.