El-Wasfi v State of New South Wales; Kassas v State of New South Wales

In *El-Wasfi v State of New South Wales* and *Kassas v State of New South Wales*, the New South Wales Court of Appeal considered appeals and cross-appeals arising from proceedings concerning a failed prosecution for murder. The primary dispute involved claims of malicious prosecution and wrongful arrest brought by the plaintiffs following their acquittal. The court was required to determine whether the primary judge had erred in failing to find malice in the prosecution and whether the test for reasonable suspicion in relation to the arrest had been correctly applied.

The Court of Appeal dismissed Mr El-Wasfi’s appeal, finding no appellable error in the primary judge’s conclusion regarding malice. The court applied the principles established in *A v State of New South Wales* (2007) 230 CLR 500, which govern the assessment of malice in malicious prosecution claims. Regarding the wrongful arrest claims, the court allowed the cross-appeal by the State, finding that the primary judge had applied an incorrect test for reasonable suspicion. The court determined that the State had not established that the arresting officers held a reasonable suspicion that the plaintiffs had committed an offence at the time of their arrest.

Consequently, the Court of Appeal set aside the judgment in favour of Mr El-Wasfi and ordered that his proceeding be dismissed. The court also set aside certain costs orders made in the primary proceedings and directed the parties to provide submissions on the remaining costs issues. The appeals brought by Messrs Kassas, Pound, and Ashley Saad were also dismissed.