Chen v State of New South Wales (No 2)

This matter concerned an appeal by the appellants against the State of New South Wales following a trial concerning allegations of tortious conduct by police officers. The appellants had been arrested, and during the arrest, an attempt was made to delete photographs taken of the incident. While charges of resisting arrest and assaulting police were dismissed, the appellants pursued a civil claim against the State. A previous decision of the Court of Appeal had found that one of the arresting officers had deleted the photographs. However, at the second trial, this officer did not give evidence, and no specific finding was made as to which of the at least six police officers present deleted the photographs. The trial judge made adverse findings against the appellants and favourable findings for another arresting officer.

The Court of Appeal was required to determine whether there was an appellable error in the trial judge's failure to find that the first arresting officer had deleted the photographs, and if so, whether such an error had affected the judgment. The court also considered the competency of the appeal, specifically whether a direction by the Registrar to file a notice of appeal constituted a grant of leave, and whether the matter at issue met the threshold for an appeal as of right.

In dismissing the appeal, the Court of Appeal reasoned that the civil standard of proof required the trial judge to reach a state of actual satisfaction, but it was not necessary to exclude all other possibilities. The court held that the primary judge was not bound by the findings of the earlier Court of Appeal, particularly given the different evidence presented at the second trial. The court found no appellable error in the trial judge's findings, as the absence of the relevant officer's evidence and the presence of multiple officers meant that a definitive finding about who deleted the photographs could not be made on the evidence before the second trial. Furthermore, any potential error did not affect the ultimate judgment.

Leave to appeal was granted to the extent necessary, the appeal was dismissed, and the appellants were ordered to pay 50% of the costs of the State.