Charara v New South Wales

CITATION:	Charara v New South Wales [2009] NSWDC 263
HEARING DATE(S):	2, 3, 6 and 7 July 2009
JUDGMENT DATE:	21 August 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	(1) Verdict and judgment for the first defendant against the plaintiff on the action. (2) Plaintiff to pay the first defendant's costs of the action up to 25 June 2009 on the ordinary basis and thereafter from 26 June 2009 on an indemnity basis. (3) Direct that the exhibits remain with the file to be returned after 28 days on application to the Registrar. (4) Note the order made on 2 July 2009 that the statement of claim against the second and third defendants be dismissed
CATCHWORDS:	TORTS - Police tort claims - Vicarious liability of the Crown (State of New South Wales) - Wrongful arrest, assault, false imprisonment and malicious prosecution - Arising out of charges for offences of failure to comply with a noise abatement direction, assault police and resist arrest - Plaintiff convicted by Magistrate at first instance - On appeal convictions quashed - Elements necessary for each count - Onus to establish rests on plaintiff - Damages
LEGISLATION CITED:	Civil Procedure Act 2005, s 64 Crimes Act 1900, ss 58, 59(1) and 61 Law Enforcement (Powers and Responsibilities) Act 2002, ss 99, 114 and 230 Law Reform (Vicarious Liability) Act 1983, ss 8(1), 9B(2) and (3) and 9D(1)(b) Protection of the Environment Operations Act 1997, ss 222, 224, 276(a), 277(1)(a), 277(4) and 283 Protection of the Environment Operations (Penalty Notices) Regulation 2004, Sch 1
CASES CITED:	A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Attorney-General for State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 Fleet v District Court of New South Wales [1999] NSWCA 363 Hathaway v State of New South Wales [2009] NSWSC 116 Jones v Dunkel (1959) 101 CLR 298 Wilson v Director of Public Prosecutions [2002] NSWSC 935
PARTIES:	Jamal Charara - Plaintiff State of New South Wales - First Defendant Edward John Taylor - Second Defendant Allan Duque - Third Defendant
FILE NUMBER(S):	24 of 2009
COUNSEL:	Mr J Charara (in person) for Plaintiff Mr TJ Ryan for First Defendant No appearance for Second and Third Defendants
SOLICITORS:	Makinson & d'Apice Lawyers for First Defendant

JUDGMENT

1 In this action the plaintiff, Jamal Charara, sought damages against the State of New South Wales for its vicarious liability in relation to alleged wrongful acts committed by two members of the New South Wales Police Force against him during the early morning hours of Thursday, 19 February 2004. The causes of action pleaded were wrongful arrest, assault, false imprisonment and malicious prosecution.

Factual Context

2 The circumstances in which the claims arose occurred in and outside the garage used by the plaintiff at his then residence in Unit 9 at 5-9 Trafalgar Street, Brighton-le-Sands where he lived with Rona Hamieh, his de facto wife. The…