Irene Rui Chen & Anor v State of New South Wales

[2017] HCASL 68

IRENE RUI CHEN & ANOR

v

STATE OF NEW SOUTH WALES

[2017] HCASL 68
S5/2017

1. The applicants seek special leave to appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales (Leeming JA, McColl JA and Emmett AJA agreeing) rejecting an appeal from a decision of the District Court of New South Wales (Charteris DCJ) rejecting the applicants' claim for damages for malicious prosecution, wrongful arrest, false imprisonment, battery and assault.  The matter is complicated by an earlier finding of the Court of Appeal when differently constituted (Chen v State of New South Wales [2014] NSWCA 41) that a police officer had deleted digital photographs of the arrest.

2. The applicants require an extension of time but an extension of time would be futile.  Despite the concerns which arise as to the proper administration of justice in circumstances where a police officer is found to have attempted to destroy photographic evidence, there is insufficient reason to doubt the correctness of the Court of Appeal's conclusion that the trial judge's factual findings concerning the arresting police officers' reasonable use of force are sustainable and sustained independently of the conduct of the police officer who deleted the photographs.  In those circumstances, an appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave.

3. Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application.

G.A.A. Nettle
30 March 2017 M.M. Gordon