Sonter v State of NSW - [2006] NSWDC 30

CITATION: Sonter v State of NSW [2006] NSWDC 30

HEARING DATE(S): 7, 8, 9 and 10 August 2006 at Armidale

JUDGMENT DATE:
22 August 2006

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the defendant

CATCHWORDS: MALICIOUS PROSECUTION - Elements required to be proved - 1. Reasonable and probable cause 2. Malice: spite, ill-will or impermissible motive

CASES CITED: A v State of New South Wales [2005] NSWCA 292
Glinski v McIver [1962] AC 726
Hicks v Faulkner (1878) 8 QBD 167
Herniman v Smith [1938] 1 All ER 1
Lister v Perryman (1869-70) LR HL 521
Lye v State of New South Wales [2005] NSWCA 282
Mitchell v John Heine (1938) 38 SR (NSW) 466
Rapley v Rapley (1930) 30 SR 94
Sharp v Biggs (1932) 48 CLR 81
Trobridge v Hardy (1955) 94 CLR 147
Turner v Ambler (1847) 10 QB 252; 116 ER 98

PARTIES: Brett Edward Sonter (Plaintiff)
State of New South Wales (Defendant)

FILE NUMBER(S): 23/2004 (Armidale)

COUNSEL: Mr D F Rofe QC and Mr Shepherd (Plaintiff)
Mr M J Nield QC and Mr Spartalis (Defendant)

SOLICITORS: Abbott Pardy & Jenkins (Plaintiff)
Crown Solicitor of NSW (Defendant)

JUDGMENT

HIS HONOUR

The proceedings

1. The plaintiff in these proceedings is Mr Brett Sonter. He was born in 1970 and now lives at Sawtell.

2. In the early hours of Saturday 30 December 2000 the plaintiff was injured in an episode that occurred at the Royal Hotel at Inverell (“the episode”). Arising out of that episode, the plaintiff was charged by the Inverell police under the Crimes Act 1900. The charges proffered were: assaulting Mr Michael Davis occasioning actual bodily harm and assaulting Mr Michael Davis (“the charges”).

3. The charges were laid by Sgt Cattell, a police officer in the employment of the defendant, then serving at Inverell as a Senior Constable. The charges were heard at the Inverell Local Court, where on 13 May 2002 the magistrate dismissed them.

4. The plaintiff commenced these proceedings in 2004, claiming damages against the defendant alleging malicious prosecution by Sgt Cattell, for which the defendant is vicariously liable.

5. As a result of the charges, the plaintiff says that he sustained injury to his reputation and feelings, incurred expense, and suffered great inconvenience, embarrassment and anxiety. He claimed special damages of $10,633.00 for legal costs of defending the charges, general damages, aggravated damages and punitive damages.

6. The defendant denied liability.

The evidence

7. At the hearing of these proceedings, in Armidale, the parties agreed that they would not ‘re-hash’, by way of oral evidence, the circumstances of the actual episode on 30 December 2000 at the Royal Hotel, Inverell. Rather, they agreed that the several statements before Senior Constable Cattell (as he then was) at the time he laid the charges against the plaintiff should be tendered together with relevant portions of the transcript from the trial of the plaintiff (“the Inverell trial”), which took place on 10 December 2001, 3 March 2002 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWDC 30
Decision Date: 22 August 2006

CaseChat Overview and Summary

In the matter of Sonter versus the State of New South Wales, the plaintiff sought redress for malicious prosecution. The plaintiff alleged that the state, through its agents, wrongfully prosecuted him for a crime of which he was ultimately acquitted. The case was heard and determined by the Supreme Court of New South Wales.

The legal issues before the court were primarily concerned with the elements required to establish a claim of malicious prosecution. Specifically, the court needed to determine whether the plaintiff could demonstrate that the prosecution against him was without reasonable or probable cause and whether it was actuated by malice, that is, spite, ill-will, or an impermissible motive. The state argued that the prosecution was justified on the facts and evidence available at the time, and thus no liability for malicious prosecution arose.

The court examined the evidence and the circumstances surrounding the prosecution, including the actions and motivations of the state's agents. It concluded that the prosecution was based on reasonable and probable cause, as there was sufficient evidence at the time to warrant a criminal proceeding. Furthermore, the court found that there was no evidence of malice on the part of the state or its agents. As a result, the plaintiff's claim for malicious prosecution was dismissed, and judgment was entered in favour of the defendant.

Orders

Orders of the court

Judgment for the defendant

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sonter v State of NSW [2006] NSWDC 30
HEARING DATE(S):	7, 8, 9 and 10 August 2006 at Armidale
JUDGMENT DATE:	22 August 2006
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the defendant
CATCHWORDS:	MALICIOUS PROSECUTION - Elements required to be proved - 1. Reasonable and probable cause 2. Malice: spite, ill-will or impermissible motive
CASES CITED:	A v State of New South Wales [2005] NSWCA 292 Glinski v McIver [1962] AC 726 Hicks v Faulkner (1878) 8 QBD 167 Herniman v Smith [1938] 1 All ER 1 Lister v Perryman (1869-70) LR HL 521 Lye v State of New South Wales [2005] NSWCA 282 Mitchell v John Heine (1938) 38 SR (NSW) 466 Rapley v Rapley (1930) 30 SR 94 Sharp v Biggs (1932) 48 CLR 81 Trobridge v Hardy (1955) 94 CLR 147 Turner v Ambler (1847) 10 QB 252; 116 ER 98
PARTIES:	Brett Edward Sonter (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	23/2004 (Armidale)
COUNSEL:	Mr D F Rofe QC and Mr Shepherd (Plaintiff) Mr M J Nield QC and Mr Spartalis (Defendant)
SOLICITORS:	Abbott Pardy & Jenkins (Plaintiff) Crown Solicitor of NSW (Defendant)