New South Wales v Hathaway

The appeal before the New South Wales Court of Appeal, constituted by Tobias, McColl, and Macfarlan JJA, concerned a judgment in favour of the respondent, Mr. Hathaway, against the appellant, the State of New South Wales. Mr. Hathaway had brought claims for malicious prosecution and trespass to the person (assault) arising from his arrest and subsequent prosecution. The primary judge had found in favour of Mr. Hathaway on both causes of action.

The Court of Appeal was required to determine whether the primary judge erred in her findings of fact and application of the law. Specifically, the court considered whether the primary judge had paid sufficient regard to the unreliability of Mr. Hathaway's evidence, whether the evidence supported the conclusion that the prosecution was brought without reasonable and probable cause and with actual malice, and whether the evidence supported the finding of assault. The court also had to consider whether, if errors were found, a new trial should be ordered and, if so, whether it should be limited to specific issues.

The Court of Appeal allowed the appeal, finding that the primary judge had failed to properly assess or address significant aspects of the evidence, particularly concerning the reliability of Mr. Hathaway's testimony and the inferences to be drawn from the unexplained failure to call certain witnesses. The court concluded that the evidence did not support the finding of malicious prosecution as pleaded. However, the court found that the issue of assault required further consideration.

Consequently, the Court of Appeal set aside the original judgment. It entered a verdict and judgment for the appellant on the malicious prosecution claim. A new trial was ordered, limited to the issue of liability for the assault claim, with directions regarding the use of existing evidence and the potential admission of further evidence. The costs of the appeal were awarded to the appellant, with a direction for the costs of the trial and new trial to be determined by the judge hearing the new trial.