Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: State of New South Wales v Hunt [2014] NSWCA 47 Hearing dates: 25 February 2014 Decision date: 13 March 2014 Before: Barrett JA at [1];
Leeming JA at [2];
Tobias AJA at [75]Decision: 1. Set aside the verdict and orders made by the District Court on 30 November 2012 and remit the matter to that Court for retrial.
2. The respondent to pay the costs of the appeal, but be given, if otherwise qualified, a certificate under the Suitor's Fund Act 1951 (NSW).
3. The costs of the first trial should be in the discretion of the judge on the retrial.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL AND NEW TRIAL - findings of fabrication of evidence by police officer - fabrication of key findings not put in cross-examination - submission of fabrication not made - agreement not to take Browne v Dunn points did not prevent substantial miscarriage of justice - retrial ordered
APPEAL AND NEW TRIAL - failure to address substantial component of defence case - failure to grapple with competing testimonial evidence in light of independent evidence - failure to address separate heads of damages
POLICE - rights, powers and duties - actions for malicious arrest, assault and battery and misfeasance in public office - whether lawful arrest - nature of tort of "malicious arrest" consideredLegislation Cited: Crimes Act 1900 (NSW), s 60(1), s 66(1)
Evidence Act 1995 (NSW), s 140(2)(c)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99
Law Reform (Vicarious Liability) Act 1983 (NSW), Part 4
Suitor's Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1)Cases Cited: Ashby v Slipper [2014] FCAFC 15
Bale v Mills [2011] NSWCA 266; 81 NSWLR 498
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1829) 3 Sim 23; 57 ER 909
Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39
Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299
Coote v Kelly [2013] NSWCA 357
Diamond v Minter [1941] 1 KB 656
Halliday v Nevill (1984) 155 CLR 1
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Presidential Security Services v Brilley [2008] NSWCA 204; 73 NSWLR 241
Roy v Prior [1971] AC 470
Smith v NSW Bar Association (1992) 176 CLR 256
State of New South Wales v Koumdjiev [2005] NSWCA 247; 63…
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- Case
- [2014] NSWCA 47
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the trial judge had erred in law by failing to adequately address substantial components of the defence case, specifically in relation to competing testimonial evidence and separate heads of damages. A further issue concerned whether the trial judge’s findings, including an implicit finding of fabrication of evidence by a police officer, had resulted in a substantial miscarriage of justice, notwithstanding that a submission of fabrication had not been formally put to the officer during cross-examination.
The Court of Appeal found that the trial judge had failed to grapple with significant aspects of the defence, including the credibility of competing witnesses in light of independent evidence, and had not properly addressed all heads of damages claimed. Crucially, the Court determined that the trial judge’s findings, particularly concerning the alleged fabrication of evidence by a police officer, had led to a substantial miscarriage of justice. The agreement not to pursue "Browne v Dunn" points did not preclude this finding.
Consequently, the Court of Appeal set aside the verdict and orders of the District Court and remitted the matter for a retrial. The respondent was ordered to pay the costs of the appeal, with a certificate for the Suitor's Fund, and the costs of the first trial were left to the discretion of the judge presiding at the retrial.
Orders
Orders of the court
1. Set aside the verdict and orders made by the District Court on 30 November 2012 and remit the matter to that Court for retrial.
2. The respondent to pay the costs of the appeal, but be given, if otherwise qualified, a certificate under the Suitor's Fund Act 1951 (NSW).
3. The costs of the first trial should be in the discretion of the judge on the retrial.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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