Chen v State of New South Wales (No 2)

[2016] NSWCA 292

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Chen v State of New South Wales (No 2) [2016] NSWCA 292

Hearing dates:

29, 30 September 2016

Decision date:

27 October 2016

Before:

McColl JA at [1];
Leeming JA at [2];
Emmett AJA at [61]

Decision:

(1)   To the extent necessary, there be a grant of leave to appeal.
(2)   Appeal dismissed.
(3)   Appellants to pay 50% of the costs of the State as agreed or assessed.

Catchwords:

APPEALS – findings of fact – civil standard – sufficient to reach a state of actual satisfaction – unnecessary to exclude all other possibilities – primary judge not bound by “findings” of earlier Court of Appeal

 

APPEALS – competency – whether direction by Registrar to file notice of appeal was grant of leave – separate plaintiffs in single proceeding seeking leave to appeal – whether matter at issue amounting to $100,000 – whether in determining if appeal lay of right, it ought be assumed that appeal is reasonably arguable

  POLICE – two police officers arrested appellants – attempt by police officer to delete photographs taken of arrest – photographs recovered from memory of camera – charges for resisting arrest and assaulting police dismissed – appellants brought claim against State alleging tortious conduct by police officers – previous decision of Court of Appeal concluded that on the evidence of first trial, the appropriate finding was that one of the arresting officers had deleted photographs – that arresting officer did not give evidence at second trial – no finding at second trial as to which of at least six police officers deleted photographs – adverse findings against appellants and findings favourable to other arresting officer – whether appellable error in failing to find that first arresting officer deleted photographs – whether any such error affected judgment – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 58, 546
District Court Act 1973 (NSW), s 127(2)(c)
Evidence Act 1995 (NSW), s 140
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99
Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8
Supreme Court Act 1970 (NSW), s 101(2)(r)

Cases Cited:

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Chen v State of New South Wales [2012] NSWDC 126
Chen v State of New South Wales [2014] NSWCA 41
Chen v State of New South Wales [2016] NSWCA 177
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Gulic v Boral Transport Ltd [2016] NSWCA 269
Hall v van der Poel [2009] NSWCA 436
Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371
Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246
Pateman v Higgin (1957) 97 CLR 521
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
West v Government Insurance Office of NSW (1981) 148 CLR 62
Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276

Category:

Principal judgment

Parties:

Irene Rui Chen (First Appellant)
Gong Xiang Xuan (Second Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:
CA Evatt, N Ford (Appellants)
MJ Windsor SC, MS Spartalis, ND Oreb (Respondent)

  Solicitors:
Juris Cor Legal (Appellants)
Makinson D’Apice Lawyers (Respondent)

File Number(s):

2015/280108; 2016/175440

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

11 September 2015

Before:

Charteris DCJ

File Number(s):

2011/54439

Judgment

1. McCOLL JA: I agree with Leeming JA.

2. LEEMING JA: On 21 February 2008, Ms Irene Rui Chen and her mother Ms Gong Xiang Xuan were arrested by two police officers, Constables Joanna Jacques and Darryl Cleofe, in a laneway in Newtown. Police had been called to attend by an employee of a real estate agent who acted for Ms Chen’s landlord. There was a dispute relating to the lease, and Ms Chen, who had also attended the agency the previous day, had refused to leave the agency. I will return to the evidence and findings as to precisely how the women came to be arrested below. While the arrests were being effected, a friend, Mr Christopher Forwood, took five photographs on Ms Chen’s digital camera. Two showed Constable Cleofe holding Ms Chen to the ground while handcuffed. Two showed Constable Jacques holding Ms Xuan against a fence. One showed Constable Cleofe with no other person in the image.

3. The two women were taken in a police vehicle to Newtown Police Station and placed in a dock. CCTV footage shows Ms Chen being carried into the dock. She complained of abdominal pain. The Duty Sergeant, Sergeant Vlachos, called an ambulance, which arrived within five minutes. The ambulance officers examined her, recorded that she was “not in any distress” but that her “mother [was] becoming very aggressive”. Ms Chen’s bag was taken from her, its property identified, and it was placed in a locker. She refused to sign the property docket recording the items taken from her. The women were each charged with two counts of assaulting an officer in the execution of his or her duty contrary to s 58 of the Crimes Act 1900 (NSW), and one count of resisting or hindering a police officer in the execution of his or her duty contrary to s 546 of the Crimes Act. Both women were released on bail later that evening.

4. Upon the camera being returned to Ms Chen when she was granted bail, she immediately complained that the five photographs had been deleted. I shall follow the language used by the parties and refer in what follows as the photographs being “deleted”. However, it would be much more accurate to say that there was an unsuccessful attempt to delete the photographs. Ms Chen was readily able, with the assistance of a friend who owned a photographic shop (Mr Tjanaria), to recover the images from the camera’s memory shortly afterwards. There is no suggestion that any photographic evidence was ever deleted in a way that was irrecoverable. In saying that, I am not intending to belittle the seriousness of an attempt by a police officer to destroy evidence relevant to a possible criminal prosecution.

5. Centrally relevant to the failed prosecution, and the years of civil litigation which ensued thereafter, was the fact – unchallenged for the purposes of this appeal – that some police officer at Newtown Police Station, but not Constable Cleofe, had deleted the five photographs taken by Mr Forwood on Ms Chen’s camera.

6. Many, many days of court time have been consumed in the almost nine years that have elapsed subsequent to February 2008. The charges were heard by a magistrate in December 2008 who, on the fifth day of the hearing, dismissed the charges. The principal reason for doing so turned upon the deletion of the photographs. His Honour said:

“I don’t know who deleted the photographs but when I know that potentially important evidence has been deleted by police it makes it very difficult to fully accept evidence given by police.”

The first District Court trial

7. Ms Chen and Ms Xuan made a formal complaint to the Commissioner in March 2009. Either because of that complaint, or quite possibly directly following the dismissal of the prosecution, there seems to have been an internal police investigation. The details of that investigation seem not to have been fully explored in the evidence.

8. In 2011, Ms Chen and Ms Xuan commenced proceedings in the District Court of New South Wales, seeking damages for malicious prosecution, wrongful arrest, false imprisonment and assault. (There is some overlap between wrongful arrest and trespass to the person, but nothing turns upon the precise elements of the torts pleaded, so I shall simply reproduce the language of the pleading.) The trial lasted ten days in 2012 before Johnstone DCJ, who dismissed the proceedings: Chen v State of New South Wales [2012] NSWDC 126. Each of Ms Chen, Ms Xuan, Constable Jacques and Constable Cleofe gave evidence and was cross‑examined. The primary judge declined to find that any police officer had deleted the photographs. His Honour dealt with this issue in most detail at [188] as follows:

“The plaintiffs placed great store on their allegation that the police officers deleted the photographs from Ms Chen’s camera. But all that was established was that it was possible for one of the officers to have done so. But it was equally possible that someone else did so. It was also conceivable that the photos, assuming they were deleted, were deleted accidentally, by the plaintiffs, by Mr Forwood, or by one of the visitors who attended at the police station to assist the plaintiffs. Nor as a matter of logic was it to the advantage of the police officers to delete the photos. The pictures were not inconsistent with the police account. As I have already said, I was unable to comfortably satisfy myself that the two police officers deliberately deleted the photos from Ms Chen’s camera. Thus, the allegations that they did so played no part in my assessment of credit.”

The decision of the Court of Appeal in 2014

9. Ms Chen and Ms Xuan appealed with leave to this Court, and the appeal was allowed: Chen v State of New South Wales [2014] NSWCA 41. Basten JA, with whom Meagher JA and Tobias AJA agreed, was critical of the way in which the primary judge had addressed the deletion of the photographs in the following terms (at [77]):

“This passage is remarkable in a number of respects. First, it appears to make no finding as to whether the photographs were in fact deleted from the camera. In order to deal with the applicants’ submissions, it was necessary to make such a finding. Secondly, Mr Tjanaria’s evidence was that it was quite difficult to delete images ‘accidentally’. Thirdly, no reference was made to the unequivocal evidence that Ms Chen immediately complained of the deletion. Fourthly, the images ultimately formed an important part of the applicants’ case and gave no obvious support to the police version of events. Fifthly, Constable Jacques deliberately removed the camera from a place where her actions could be observed (contrary to proper police practice) and had the opportunity to delete the images. Sixthly, it was further necessary to consider the force of the applicants’ submission that it was only when Mr Forwood took the photographs that the officers, independently and contemporaneously, decided to call for assistance. That submission was not addressed in the reasons.”

10. His Honour thereafter dealt with a submission made by counsel then appearing for the State that the photographs might not have been deleted, or that they had been deleted but through the fault of no person, and rejected it, having regard in part to the fact that it had not been put to Ms Chen that she had deleted the photos herself (whether deliberately or accidentally) or that her complaint about her deletion was in some way fabricated.

11. Paragraphs [81] and [82] of Basten JA’s reasons assumed some importance at the following trial and in the current appeal. Those paragraphs dealt with the deletion of the photographs, and what they showed.

12. Paragraph [81] was in the following terms:

“On the evidence given at the trial, the images were on the camera and were viewed by Officer Cleofe before he left the custody office, at which stage the camera was in the possession of Officer Jacques. The evidence did more than establish that it was ‘possible for one of the officers’ to have deleted the photographs: there was no evidence that the camera was in the possession of anyone who knew of the photographs, had any motive to delete them or had the opportunity to delete them, other than Officer Jacques. On the balance of probabilities, the appropriate conclusion was that they had been deleted by Officer Jacques. That she took the camera to a place where she could neither be seen by the applicants, nor her actions recorded by CCTV, give support for such a conclusion. As indicated by Sergeant Jackson, her conduct in taking the camera into another room in order to view it was not in accordance with proper police practice.”

13. That paragraph is to be read with extracts from Constable Jacques’ cross‑examination to the effect that she denied deleting the photographs and his Honour’s conclusion at [86]-[87] as follows:

“This evidence left little room for mistake. There was no suggestion in chief, in cross-examination or in re-examination that Officer Jacques had accidentally deleted the photographs. If she did delete them, her evidence was false.

No doubt the benefits of seeing a witness provided the trial judge with an advantage not available to this Court. However, that advantage tends to be less with an experienced witness, such as a police officer, than with other sections of the community. It is sufficient for present purposes to say that the trial judge, in the judgment, did not grapple with the very real issues raised by this evidence. The ‘objective evidence’, as it is sometimes called, spoke strongly in favour of the proposition that the images were deleted by Officer Jacques.”

14. The second important passage in this Court’s reasoning in 2014, paragraph [82], was as follows:

“The suggestion that, ‘as a matter of logic’, it was not ‘to the advantage of the police officers’ to delete the photographs was not a persuasive consideration one way or the other. The photographs demonstrated that significant force was being used by Office Cleofe in restraining Ms Chen on the ground and also by Officer Jacques in holding her mother against the fence with her arms against her chest, just below her neck. The photographs were capable of suggesting that excessive force was being used by the officers, depending upon what level of violence they could establish had been proffered by Ms Chen or her mother. Whether the judge thought that the pictures were ‘not inconsistent with the police account’ was not necessarily the determining factor as to whether it was likely that Officer Jacques had deleted the photographs. That depended on what view she (and possibly Officer Cleofe) took of the matter. There was no ‘police account’ at the time the photos were thought to have been deleted. The officers’ statements were prepared later.”

It will be seen below that the notice of appeal contains repeated references to the “findings” contained in those two paragraphs.

The second trial in 2015

15. The retrial ordered by this Court in 2014 took place over some 14 days in February and March 2015. On 11 September 2015, Charteris DCJ once again entered judgment for the State. Once again, no finding was made as to who deleted the photographs. Each of Ms Chen, Ms Xuan and Constable Cleofe gave evidence and was cross‑examined extensively. Some of the police officers who had given evidence at the first trial again gave evidence. The testimonial evidence of each of these witnesses (some of whom were being cross-examined for the third time on the same facts) was, of course, different from what had been said in the first civil trial. An open-ended question was asked of Mr Chen, “Did you delete the photos?” to which she answered, “No. I swear I did not.” The State also adduced evidence from police officers who had not testified at the earlier trial.

16. There was some evidence that was identical. That was not only the documentary evidence (including the “deleted” photographs themselves) but also some testimonial evidence. The transcript of the evidence given by some of the police officers was tendered. In particular, Constable Jacques did not give evidence. Relying upon evidence of two psychiatrists to the effect that she was unfit to give evidence, her previous testimony was tendered, without opposition by the plaintiffs. That testimony included, of course, her denial of deleting the photographs. Although one of the psychiatrists’ reports referred to the officer receiving a telephone call in May 2014 “again stating that this complaint had arisen”, the District Court was told on instructions by counsel appearing for the State that the internal affairs investigation had been completed and had not been reactivated, and that the reference in the report should be read as Constable Jacques being contacted about there being a second trial.

17. Constable Cleofe gave evidence and was cross‑examined again. He squarely denied deleting the photographs, and the primary judge accepted his evidence. However, the primary judge accepted also that the photographs had been deleted, at Newtown Police Station, by some police officer, whose identity his Honour was unable to determine. His Honour’s reasons on this issue were at [131]:

“I am satisfied that Constable Cleofe played no role in the deletion of the photographs form Ms Chen’s camera. I am satisfied that Ms Chen played no role in that deletion either. I am satisfied that a police officer at Newtown Police Station must have deliberately involved himself or herself in the deletion of those photographs. The evidence satisfies me that there were a number of police officers about the vicinity when a number of the events occurred in the custody room and in the custody manager’s office at Newtown Police Station. The photograph stills show the presence of police officers other than Constable Jacques and Constable Cleofe in the manager’s office when the camera was being examined. I cannot be satisfied, however, that the deletion of those photographs occurred in that room. I have received submissions and have had regard to the evidence. It appears that Constable Jacques took the camera from the bag and proceeded into the manager’s office, returning after 80 seconds. Other police officers were there. I accept the evidence that to delete each photograph, one has to press the command button on the camera on two occasions. I am not satisfied on the evidence that the deletion occurred there. The evidence does not enable me to say where the deletion occurred. It is possible, on the material before me, that it could have occurred at that time in that room. That would implicate Constable Jacques. I accept Constable Cleofe’s evidence that he played no role in that deletion. However, I note that Ms Chen did not get access to her camera again for some hours; there is other evidence to suggest the camera was stored elsewhere during that time. There is evidence that at least one officer at the station had formed the view that it was not lawful to take photographs of the police officers during the course of the arrest, mistaken though that view was. I cannot form a view as to which police officer deleted the photographs. It is possible that it was Constable Jacques. It is equally possible it was another officer. It is possible that it occurred in the custody manager’s office. It is equally possible it occurred elsewhere. I have done my best to read all the evidence on the topic. I cannot be persuaded when the deletion happened, where it happened or who achieved the deletion. When I come to read Constable Jacque’s [sic] evidence, I must do so taking into account that it is possible that she played a role in the deletion of the photographs; I must assess her evidence accordingly.

18. His Honour also made a series of adverse findings, to the effect that Ms Chen and Ms Xuan did commit two assaults upon police, and one offence of resist or hinder. His Honour found that Ms Chen struck Constable Cleofe’s arm and, having been told that she was under arrest, continued to kick out at the police and her legs connected with police. Ms Chen also resisted the placing of handcuffs upon her. His Honour found that Ms Xuan intervened in her daughter’s arrest, pushing Constables Cleofe and Jacques, and also sought to resist police. His Honour found in terms that the version of events as put by Ms Chen of the events leading up to the arrest was false, as was that of Ms Xuan. Those findings led to the conclusion at [178]:

“The behaviour of Ms Chen, encouraged by Ms Xuan, was appalling. I do not accept that the photographs that are relied up show an excess of force. The force that was applied was consistent with the task the police had at hand. They had to deal with an unreasonable, hysterical and uncontrollable person in the form of Ms Chen. Ms Xuan’s arrival on the scene exacerbated an already extremely difficult policing circumstance.”

19. His Honour’s conclusions were that each arrest was not unlawful, with the result that there had not been any false imprisonment nor malicious prosecution, nor assault or wrongful arrest. His Honour observed that there was no issue that a prima facie case had been made out, but found on the balance of probabilities that each of Ms Chen and Ms Xuan committed two assaults upon police and one offence of resist or hinder, necessarily entailing the conclusion that the prosecution was neither malicious, nor wanting in reasonable and probably cause. His Honour also observed, with respect correctly, that those conclusions were not inconsistent with the dismissal of the criminal prosecution, having regard to the standard and onus of proof.

The second appeal to this Court

20. The notice of appeal contained the following nine grounds.

“1.   The trial judge erred in not following the findings of the Court of Appeal regarding where the photographs were deleted from a camera and who probably deleted them.

2.   The trial judge erred in not finding the degree of probable violence depicted in the photographs as found by the Court of Appeal.

3.   The trial Judge erred in accepting the evidence of Officers Jacques and Cleofe and rejecting the evidence of the Appellants.

4.   The trial Judge erred in not finding that Officer Jacques probably deleted the photographs in the custody office.

5.   The trial Judge erred in finding that unidentified police officers may have deleted the photographs.

6.   His Honour erred in denying the Appellants procedural fairness in respect of his findings as to the persons who may have deleted the photographs.

7.   His Honour erred in not applying the civil onus of proof to the evidence implicating Officer Jacques in the deletion of the photographs in the custody office.

8.   The trial Judge erred in ignoring, not following and not referring to the findings of the Court of Appeal in his judgment.

9.   The trial judge should not have found unidentified police officers may have deleted the photographs as this was not the Respondent’s case.”

21. Those grounds overlap, and in oral submissions, the appellants relied on two basic grounds. The first was based upon the “findings” of this Court in 2014. Mr Evatt, who appeared with Mr Ford for the appellants at both of the trials and in the previous appeal, accepted that the “findings” of this Court in 2014 were rebuttable, but were not rebutted in the present case. The second was that the finding by the primary judge that one or more unidentified police officers deleted the photographs was unjustified and unfair. It was submitted that there was no basis in the evidence for such a finding, and that in any event, procedural fairness required the primary judge first to raise the possibility with the plaintiffs.

22. The thrust of the submission was encapsulated as follows:

“[I]f it can be shown - as we say is shown on the evidence before this Court today - that it was Constable Jacques who deleted the photographs and then denied doing it, aided or certainly with the knowledge of Constable Cleofe, that would reflect on their credit and make it more likely, if we take the photographs into account, that the findings against the credit of the two appellants could be outweighed by the discredit of the two police officers.”

23. The convenient course is to follow the approach adopted in oral submissions, dealing with the issues as framed by the parties when the appeal was heard, and return to the matters left outstanding as based on the grounds of appeal and the written submissions.

The deletion of the photographs

24. The State accepts that one of the at least six police officers present at Newtown Police Station on 21 February 2008 had deleted the photographs that evening. It maintains that the primary judge was entitled to form the view that he was unable to make any finding save that Constable Cleofe did not delete them.

25. On one view, a positive finding as to how the photographs were deleted was not necessary in order for the primary judge to conclude that the proceedings were required to be dismissed. This is not a case where the primary judge failed to make contingent findings on issues that did not arise (a course which is open and appropriate in a number of circumstances, although a judge taking that course should explain why: see Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]-[9]). This is a case where the primary judge formed the view that, having regard to the seriousness of its consequences, he was unable to make the finding.

26. The interests of the State of New South Wales are by no means aligned with the interests of the individual police officers, for whose tortious conduct it is vicariously liable, pursuant to ss 6 and 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). The present appeal sharply discloses the divergent interests.

27. It is the interests of each of the police officers who were not involved in the destruction of the photographs that that fact be determined after a failed prosecution and not one but two lengthy trials where this issue was central. The State’s interest is different.

28. It is an unenviable aspect of the judicial role to make adverse findings about witnesses and litigants, but this is a case where it was inappropriate not to do so. I agree with the conclusion expressed by Basten JA that, on the evidence of the first trial, the appropriate finding was that Constable Jacques had deleted the photographs. The position following the second trial is, in my opinion, even clearer.

29. First, the CCTV footage records Constable Jacques taking the camera and viewing it in a room not covered by the CCTV footage for some 80 seconds. There is no evidence to suggest that any other police officer had an opportunity to delete the photographs.

30. Secondly, Constable Jacques had a motive to delete the photographs (which were of her and Constable Cleofe). None of the other police officers at Newtown that evening appeared on any of the deleted photographs. It was suggested in submissions that, perhaps, one or more of them was of the view that it was unlawful to photograph a police officer executing his or her duty. That, with respect, is little more than mere speculation. It is also speculation which is internally inconsistent. If such an officer were of that view, then by deleting a photograph depicting a police officer in the execution of his or her duty, that police officer would themselves be destroying evidence of a criminal act.

31. Thirdly, the question falls to be resolved on the civil standard, although having regard to s 140 of the Evidence Act 1995 (NSW). There is no documentary or testimonial evidence pointing to any particular officer other than Constable Jacques as being the police officer who deleted the photographs.

32. Fourthly, Constable Jacques did not give evidence in the second trial. Insofar as her testimonial evidence in the first trial to the effect that she denied attempting to delete the photographs casts doubt upon the conclusion to which the remainder of the evidence points, this Court is as well placed as the primary judge to reject it. In this respect, the position is clearer than was the case in this Court in 2014. However, I would reject the appellants’ further submission that Constable Jacques’ unwellness to attend was, as Mr Evatt put it, “some indication of a guilty conscience”. That does not emerge clearly from the evidence (which, for example, states that “each repeated period of legal proceedings could be seen as separate stressors”) and I do not think that it may be inferred.

33. The applicable principles were reviewed by McDougall J, with whom McColl and Bell JJA agreed, in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [44]-[55]. His Honour there referred to passages in judgments of Sir Owen Dixon which were approved by majorities of the High Court in later cases (West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66 and Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162 and 168) in support of the need for a court to reach a state of actual satisfaction as to the occurrence or existence of a fact. A unanimous High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 said:

“It is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture … But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”

34. It is not necessary, in order to make a finding on the civil standard, to exclude other possible explanations. Authority is scarcely necessary for that proposition. However, that was precisely the point made – by reference to Bradshaw v McEwans Pty Ltd – by a unanimous High Court in Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824 at [47]. It was also the point made by French CJ, Gummow, Crennan and Bell JJ in Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [34]:

“[I]t is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open.”

35. I do not accept the State’s submission that the primary judge could not properly decide, on the evidence before him, that Constable Jacques deleted the photographs. All of the evidence pointed in that direction, save for Constable Jacques’ denial in the previous trial. The alternative scenarios are speculative possibilities.

36. Having regard to the seriousness of the finding, the primary judge erred in failing to find that, on the evidence before his Honour, Constable Jacques deleted the photographs.

Remaining grounds of appeal

37. The foregoing addresses part of ground 1, and grounds 4, 5, 6, 7 and 9 of the notice of appeal, which overlap, and all of which are directed to the deletion of the photographs.

38. The remaining grounds may be resolved concisely. Grounds 2 and 8 are related. Ground 2 asserts error in “not finding the degree of probable violence depicted in the photographs as found by the Court of Appeal”. Ground 8 asserted error “in ignoring, not following and not referring to the findings of the Court of Appeal”, thereby referring to what was depicted in the photographs, and the analysis of the evidence as to the deletion of the photographs, contained in [81] and [82] of this Court’s judgment in 2014. Ground 1 also refers to the “findings” of this Court. All of these grounds must be rejected.

39. First, there was no finding that Constable Cleofe deleted the photographs (or attempted to delete the photographs). There was instead a conclusion that the primary judge in the first trial had erred, in failing to make such a finding, based on the evidence before him. The matter was remitted for retrial, and – importantly – on all issues. That accorded with the “sound general proposition” to which Kitto J referred in Pateman v Higgin (1957) 97 CLR 521 at 527 that where there is to be a new trial, the starting point is that it ought to be of the case as a whole, and only if “more injustice” would be done by “setting the matter at large again” should there be a more limited remitter. It also accorded with what Gleeson CJ said, with the agreement of McHugh and Gummow JJ, in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [20]:

“There remain for decision a number of unresolved questions which will depend upon the reliability of the evidence of other witnesses, including that of the first respondent. At a new trial, the trial judge will have to hear evidence, and make findings about, the circumstances of the accident. The evidence will not necessarily be the same as the evidence at the first trial. It could be significantly different. It is in the interests of justice that the judge hearing the second trial should be in a position to make a fresh appreciation of the whole of the relevant evidence, unconstrained by an artificially isolated assumption that reflects the first respondent's forensic success in the Court of Appeal.”

40. The entirety of that passage is substantially applicable to what occurred in the second trial in the present proceedings. In particular, this Court’s conclusion in 2014 that the appropriate finding by the judge who heard the first trial was that Constable Cleofe had attempted to delete the photographs was a conclusion which was expressly and correctly confined to the evidence given at that trial.

41. Secondly, turning to the “findings” made in [82] concerning the photographs, it will be seen that the second and third sentences contained an important distinction, not always observed in the submissions made in this appeal. The second sentence stated that the photographs demonstrated that significant force was being used by the officers against Ms Chen and Ms Xuan. The third sentence stated that the photographs were capable of suggesting that excessive force was being used by those officers. There is no finding that excessive force was being used at the time the photographs were taken. Once again, the nuances in Basten JA’s reasons are careful and appropriate. Whether the force was excessive – being an issue squarely relevant to the tortious causes of action advanced by Ms Chen and Ms Xuan – was a conclusion which turned not only on the force being applied by the officers, but upon what Ms Chen and Ms Xuan were doing, and saying, at the time (among other things). That in turn would depend upon the evaluation of their evidence at the second trial.

42. Finally, ground 3 alleges error by the primary judge “in accepting the evidence of Officers Jacques and Cleofe and rejecting the evidence of the Appellants”. That formulation is imprecise. The primary judge did not accept all of the evidence of Constable Jacques, and was cautious in relying on any aspect it. His Honour did accept the evidence of Constable Cleofe, and rejected the evidence of the appellants. It was open to his Honour to accept Constable Cleofe’s evidence, and Mr Evatt made it plain that he did not separately challenge the adverse credit findings against his clients (“there’s no doubt there were strong findings made against the appellants by the judge and there’s no appeal from them”).

Resolution of the appeal

43. But the appellants’ forensic success on appeal concerning the deletion of the photographs by no means sustains the conclusion that the appeal should be allowed.

44. The primary judge was conscious of the fact that he had not determined which police officer had deleted the photographs, save that it was not Constable Cleofe or the appellants or Mr Forwood. His Honour’s findings were, necessarily, premised upon that issue being partially unresolved. They were in very large measure based upon his findings as to the quality of the evidence of Ms Chen and Ms Xuan and Constable Cleofe.

45. There is no challenge to the seriously adverse findings based on credit against both Ms Chen and Ms Xuan, both of whom he regarded as having given false evidence. Nor is there any challenge to the finding by the primary judge at [174] that he was “comfortably satisfied that the evidence given by Constable Cleofe as to the circumstances leading up to the arrest outside Laing and Simmons is honest, accurate and reliable”.

46. Contrary to the appellants’ submissions on appeal, it did not follow from a finding that Constable Jacques deleted the photographs that Constable Cleofe was aware of her having done so. It is true that he approached Constable Jacques while she was holding the camera, and he accepted in cross-examination that he saw, looking over her shoulder, the photographs. He said that he did not see her deleting the photographs, and denied that Constable Jacques told him that she had deleted the photographs. Constable Cleofe was asked:

“Q. You participated with Constable Jacques in deleting the photos?

A. No, sir.

Q. You wanted the photographs deleted because they showed you in a bad light?

A. No, sir.”

47. It is possible that Constable Jacques deleted the photographs without the involvement of, or knowledge of, Constable Cleofe. There was ample time for that to occur in the 80 seconds while she held the camera, without being seen to have done so by Constable Cleofe.

48. The favourable findings in relation to Constable Cleofe, and the adverse findings made in relation to Ms Chen and Ms Xuan, are independent of whether or not Constable Jacques deleted the photographs. They were findings which the primary judge made, expressly, on the basis that Constable Jacques might have deleted the photographs. I do not see that they are affected by the error which I have concluded was made by the primary judge, which was that his Honour should have found on the balance of probabilities that Constable Jacques did delete the photographs.

49. Those unchallenged findings are fatal to the appeal. To recapitulate what has been summarised above, his Honour accepted (at [175]) that Ms Chen struck Constable Cleofe’s arm and that “she so resisted the police after being told she was under arrest that the only way the police could restrain her was to bring her to the ground and to handcuff her”. His Honour accepted that in the course of doing so “she had kicked out at the police and her legs had connected with police”. His Honour accepted that “Ms Xuan and Mr Forwood then came upon the scene and that they very improperly intervened with what was a lawful arrest.” His Honour said that “I do not accept that there was an excessive use of force by police”.

50. It is unnecessary to say anything else. Those findings are plainly fatal to the claims in assault, wrongful arrest, false imprisonment and malicious prosecution.

Leave to appeal

51. On the second day of the hearing, the State addressed, and in some detail, its notice of motion seeking that the appeal be dismissed for want of competency, on the basis that it had not been shown that there was a matter in issue exceeding the $100,000 threshold imposed by s 127(2)(c) of the District Court Act 1973 (NSW), and that leave should not be granted. Earlier, the State had been granted a small extension of time to file a notice of objection to competency, which was stood over to the hearing of the appeal: Chen v State of New South Wales [2016] NSWCA 177. The Registrar had also previously extended the time for the filing of a notice of appeal. As Emmett AJA has explained, that could not be regarded as a grant of leave.

52. The State’s oral submissions (which were much more detailed than those supplied in writing, and were supplemented by written submissions supplied on the first and second day of the appeal) raised a number of issues. One was whether the claims of Ms Chen and Ms Xuan were to be added together for the purposes of the $100,000 threshold. The State said that they were not, something which was supported by what had been said in Hall v van der Poel [2009] NSWCA 436 at [3]. Mr Evatt said that he believed that proposition to be correct. That gives rise to results which seem prima facie problematic, if not unfair. Suppose in a single proceeding, a surviving spouse and children bring a compensation to relatives claim where the spouse claims $80,000 and two children each claim $25,000. It seems odd that if the claims all succeeded at trial, the defendant would enjoy an appeal as of right, but if the claims were all dismissed at trial, the unsuccessful claimants would only enjoy an appeal with the grant of leave. A similar difficulty arises where there is a claim of $200,000 by or against a firm constituted by 3 partners. It may be that there will inevitably be asymmetrical and arbitrary results when there is a monetary threshold for an appeal as of right, but before determining that question (and the related question whether it applies to joint claims by or against partners) it seems to me that it would be desirable to hear argument on it.

51. The solicitor acting for Ms Chen and Ms Xuan had supplied an affidavit identifying that their claims exceeded $100,000. There were some unsatisfactory aspects of that affidavit; it is clearly established that it is insufficient for such an affidavit merely to assert the conclusion: see the authorities contained and applied in Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 at [73]-[74]. On the other hand, the State said that, for the purpose of determining whether an appeal law as of right, the Court was not to assume that the appeal was reasonably arguable. The State favoured an approach where “one would always have, given the evidence, a very cynical, or alternatively a cautious view, of the manner in which [Ms Chen] presented her evidence and the ability of her to substantiate a claim of any substance.”

52. There is at least potentially a difficulty in conflating the question whether an appeal lies as of right with the prospects of its success. One practical difficulty is whether that can occur at an early stage, before the appeal books and submissions are prepared. Another difficulty is as follows:

“LEEMING JA: This submission you’re making now strikes me as a really large one. There are plenty of cases of people who claim past economic loss, future economic loss, and they are disbelieved in terms of something being caused by a motor vehicle accident or workplace accident. If this submission is accepted and there’s a strong basis for accepting the credibility difficulties that were found by the judge below, which are the subject of appeal in all of those cases, if this submission is correct, there would be a need to obtain leave. That, in my limited understanding, would be quite revolutionary.

WINDSOR: I understand, your Honour.

LEEMING JA: I don’t see it anywhere in your written submissions.

WINDSOR: Indeed, your Honour. I understand your Honour’s position.”

I am inclined to doubt that the State’s analysis – which was not, in this respect, otherwise elaborated orally or in writing – can be correct.

55. Let it be assumed that leave to appeal is required. There is a question of general public importance in this litigation, which has focussed upon the attempted destruction of evidence by a police officer. It would be entirely unsatisfactory to the other police officers working in Newtown LAC that evening, and to public administration generally, for that question to remain unresolved by reason of the refusal of a grant of leave, the appeal having been fully argued. There has also been a very considerable amount of court time and legal costs incurred over the last eight years. Contrary to one submission made by the State, the intensity of litigation in the past supports a grant of leave, so that the dispute which is important to the parties and to the witnesses may be resolved on its merits. These matters overlap with reasons I gave earlier this year as to why there should not be a separate hearing of an application for leave: Chen v State of New South Wales [2016] NSWCA 177 at [20]-[23]. The State made no submissions directed to those paragraphs.

56. In short, if leave be necessary, this is a clear case whether there should be a grant of leave. In those circumstances, it is unnecessary to determine the question of leave. Given that this question only assumed real prominence in the State’s submissions in oral address on the second day of the hearing, it may be doubted that this Court has received as much assistance as is desirable to determine a question of this nature. The preferable course is that adopted in Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [5] and [157], namely to order that to the extent that leave to appeal is necessary, there be a grant of leave.

Orders

57. For those reasons, there should to the extent necessary be a grant of leave, but the appeal must be dismissed.

58. The appellants have failed to set aside the judgment against them. On the other hand, they have succeeded in respect of the most significant issue (in terms of the length of oral and written submissions) raised on appeal: the finding of deletion of the photographs. The fact that the appeal took two days was attributable to issues introduced by the State on which it failed (Mr Evatt’s submissions in chief were completed by lunch time on the first day, and his submissions in reply were very brief).

59. In my opinion, those matters warrant a departure from the ordinary rule that costs follow the event. Taking a broad-brush approach (see Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18]-[19]), I propose that the appellants pay half the costs of the State, as agreed or assessed, on appeal.

60. I propose these orders:

1. To the extent necessary, there be a grant of leave to appeal.

2. Appeal dismissed.

3. Appellants to pay 50% of the costs of the State as agreed or assessed.

61. EMMETT AJA: These proceedings are concerned with claims by Ms Irene Chen and her mother, Ms Gong Xuan, (together the Claimants) that each of them was the subject of wrongful arrest, false imprisonment, assault and malicious prosecution at the hands of officers of the New South Wales Police Force. They sued the State of New South Wales (the State) on the basis that the State was vicariously liable for the conduct of the police officers under the Law Reform (Vicarious Liability) Act 1983 (NSW) (the Vicarious Liability Act). On 17 August 2012, after a 10 day trial in the District Court in 2012, Johnstone DCJ directed the entry of judgment in favour of the State and ordered the Claimants to pay the State’s costs. [1] However, on 10 March 2014, this Court granted the Claimants leave to appeal and set aside the judgment and orders made in the District Court. [2] The matter was remitted to the District Court.

    1. Chen v State of New South Wales [2012] NSWDC 126.

    2. See Chen v State of New South Wales [2014] NSWCA 41.

62. After a further trial over 14 days, another judge of the District Court (the primary judge), for reasons published on 11 September 2015, ordered that verdict and judgment be entered for the State against each of the Claimants. On 24 September 2015, the Claimants filed a notice of intention to appeal from the orders of the primary judge and, on 10 December 2015, they filed a summons seeking leave to appeal from the orders of the primary judge. On 30 May 2016, the Registrar of this Court ordered that the time for filing a notice of appeal be extended for seven days from that day. On 6 June 2016, the Claimants filed notice of appeal from the orders of the primary judge.

63. The Claimants contended, through their counsel, that the Registrar’s extension of time for filing a notice of appeal constituted the grant of leave to appeal for the purpose of s 127(2)(c) of the District Court Act 1973 (NSW) and s 101(2)(r) of the Supreme Court Act 1970 (NSW). That contention is untenable. The latter provision requires the grant of leave by the Court of Appeal. The Registrar has no delegated power to grant leave. In any event, the Registrar did not purport to grant leave. Rather, he simply extended the time for filing a notice of appeal, and his orders went no further than that.

64. It is arguable that leave is required because the total damages claimed by each of the Claimants would not exceed $100,000. I have had the advantage of reading, in draft form, the proposed reasons of Leeming JA. I agree with his Honour’s observations concerning the question of leave and agree that, having regard to the seriousness of allegations made against police officers, it is appropriate to grant leave, if leave is required. Further consideration of the question of leave is unnecessary.

65. Nine grounds of appeal are specified in the notice of appeal. Two grounds were pressed in oral argument during the course of a concurrent hearing of the application for leave to appeal and the appeal. Before dealing with the grounds of appeal, it is desirable to say something about the issues in the proceedings in the District Court.

66. On 20 February 2008, Ms Chen and Ms Xuan attended the Newtown office of Laing & Simmons, real estate agents. Following a dispute about the terms of Ms Chen’s lease, the Claimants were asked to leave the office. On the following day, Ms Chen attended the office of Laing & Simmons again. When she refused to leave, the police were called and Constables Jacques and Cleofe attended the office and removed her. In the course of a struggle that followed, Ms Xuan and a Mr Forwood arrived. Mr Forwood was personally involved with Ms Chen.

67. At the request of Ms Chen, Mr Forwood took out a digital camera from Ms Chen’s handbag and took photographs of Constables Jacques and Cleofe dealing with Ms Chen and subsequently dealing with Ms Xuan. Five photographs were taken depicting the Claimants and Constables Jacques and Cleofe in confrontation. At about that time, Constable Jacques or Constable Cleofe radioed for police assistance and other police officers arrived.

68. The Claimants and Mr Forwood were arrested and taken to Newtown Police Station, where they were charged with assaulting an officer in the execution of his or her duty and with resisting or hindering a police officer in the execution of his or her duty. While at the police station, Ms Chen’s bag, containing the digital camera, was taken into custody. The evidence before the primary judge showed that, while the Claimants were in custody, Constable Jacques removed the camera from the bag and went to another room. She was away for about 80 seconds and subsequently returned with the camera. The Claimants were finally released from custody after some hours. Ms Chen subsequently claimed that five photographs of the confrontation had been deleted without her knowledge or consent.

69. Mr Forwood pleaded guilty to the charge against him. However, Ms Chen and Ms Xuan pleaded not guilty. After a trial of five days in the Local Court, they were both acquitted. While the Magistrate accepted that there was a prima facie case against them, the Magistrate was not persuaded beyond reasonable doubt that the charges were made out, having regard to the conclusion reached by the Magistrate that the five photos taken of the incident at the Laing & Simmons office had been deleted from Ms Chen’s camera by police officers.

70. Following the acquittal, the Claimants commended proceedings in the District Court. After the proceedings were dismissed, the first appeal to this Court was filed, with the result indicated above. The basis upon which the orders of Johnstone DCJ were set aside was that his Honour had failed to “grapple” with the very real issues raised by objective evidence that spoke strongly in favour of the proposition that the photos were deleted by Constable Jacques. [3]

    3. Chen v State of New South Wales [2014] NSWCA 41 at [87] (Basten JA, Meagher JA and Tobias AJA agreeing).

71. While Constables Jacques and Cleofe gave oral evidence at the first trial, Constable Jacques did not give evidence at the second trial because of a psychiatric disability. However, a transcript of the oral evidence given by her at the first trial was admitted into evidence in the second trial without objection.

72. After the second trial, the primary judge firmly reached the view that Ms Chen did not accurately recount the full circumstances that led to her arrest. His Honour considered that her evidence was unimpressive about what she could recall had occurred at Laing & Simmons on the afternoon of 20 February 2008. His Honour was also comfortably satisfied that Ms Chen omitted to refer to her conduct once she was taken outside the Laing & Simmons office on 21 February 2008. That is to say, upon being released by the police, she immediately sought to re-enter the office when the police were asking her not to do so.

73. The primary judge was comfortably satisfied that the evidence given by Constable Cleofe as to the circumstances leading up to the arrest was honest, accurate and reliable. His Honour considered that Constable Cleofe’s account was supported by the account given by Constable Jacques, although his Honour cautioned himself about the possibility that Constable Jacques had deleted the photographs. His Honour found that the photographs were deleted by a police officer but not Constable Cleofe. His Honour could not find that Constable Jacques did so and that there were a number of police officers who could have done so. In any event, his Honour concluded that the photographs were consistent with the version given by the police officers.

74. The primary judge found that Ms Xuan gave untrue evidence and his Honour did not accept the version that she gave. His Honour confidently concluded that Ms Xuan deliberately pushed Constable Cleofe and that she sought to resist the police by continuing to go back to where Constable Cleofe was trying to restrain Ms Chen. His Honour considered that the behaviour of Ms Chen, encouraged by Ms Xuan, was “appalling”. His Honour did not accept that the photographs that were relied upon showed an excess of force and that the force that was applied was consistent with the task the police had at hand, in that they had to deal with “an unreasonable, hysterical and uncontrollable person in the form of Ms Chen”. His Honour considered that Ms Xuan’s arrival on the scene exacerbated an “already extremely difficult policing circumstance”.

75. His Honour “reluctantly” came to the view that the version leading up to the arrest, as put by Ms Chen, was false and that the version put by Ms Xuan, leading to her arrest, was also false. His Honour was comfortably satisfied that the arrest of each of them was justified and lawful and that the police properly used their powers under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). His Honour found that each of the Claimants committed two assaults upon police and one offence of resist or hinder police. His Honour found that neither arrest was unlawful and that there had not been any false imprisonment. His Honour also found that there had been no malicious prosecution of either of the Claimants and that the prosecution of each of them was entirely appropriate. His Honour concluded that the elements of the torts alleged by the Claimants had not been established.

76. In essence, the grounds of appeal in the notice of appeal raised four issues as follows:

• Whether the primary judge erred in not following findings of the Court of Appeal in the first appeal;

• Whether the primary judge erred in not finding that Constable Jacques probably deleted the photographs and in finding that unidentified police officers may have deleted the photographs;

• Whether the primary judge erred in not finding the degree of probable violence used by Constables Jacques and Cleofe in restraining and arresting the Claimants as depicted in the photographs;

• Whether the primary judge erred in not applying the civil onus of proof to the evidence implicating Constable Jacques in the deletion of the photographs.

77. Most of the argument concerned the first two grounds. The last ground clearly has no substance since the primary judge referred expressly to the civil onus in his reasons. Having regard to the serious nature of the allegation against officer Jacques, the degree of satisfaction that the conduct occurred must be high. [4] The third ground received relatively little attention from the Claimants beyond unsubstantiated contentions about the level of violence apparently evident in the photographs. Failure to establish the third ground would be fatal to the appeal since, even if the first two grounds were made out, the appeal must fail if the third ground is not also made out.

    4. See Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362.

78. I agree with Leeming JA, for the reasons proposed by his Honour, that the appeal must be dismissed. There was no challenge to the findings made by the primary judge concerning the respective credit of the witnesses to the confrontation that occurred on the afternoon of 21 February 2008 at the Laing & Simmons office, on whose evidence the primary judge made the relevant findings. Even if his Honour erred in failing to find that Constable Jacques deleted the photos, which were subsequently recovered and were in evidence, that does not affect the findings made that the elements necessary for the torts alleged in the statement of claim were simply not made out. I agree with the orders proposed by Leeming JA, including the order as to costs.

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Endnotes

Decision last updated: 27 October 2016