State of New South Wales v Madden

The State of New South Wales appealed to the Court of Appeal of New South Wales against a judgment of the primary judge who found in favour of the respondent, Ms Madden, in her claims for battery, false imprisonment, and malicious prosecution. The primary judge had also awarded damages, including exemplary damages. The appeal raised issues concerning apprehended bias of the primary judge, the lawfulness of the police's actions in stopping and detaining Ms Madden, her subsequent arrest, and the application of certain provisions of the *Civil Liability Act 2002* (NSW).

The Court of Appeal was required to determine whether the primary judge had demonstrated an apprehension of bias through interventions and comments made during the trial, and whether the police had lawfully exercised their powers under the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) when stopping and detaining Ms Madden, and subsequently arresting her. Further issues included whether the actions constituted battery and false imprisonment, and whether the *Civil Liability Act 2002* (NSW), specifically sections 43A and 3B(1)(a), operated to exclude the State's liability. The court also had to consider the elements of malicious prosecution, including the absence of reasonable and probable cause and the presence of malice, and whether the damages awarded, including exemplary damages, were excessive or included compensation for detention not causally linked to the prosecution.

The Court of Appeal dismissed the appeal. It found no basis for the claim of apprehended bias, noting that no application for disqualification had been made at trial. Regarding the tort claims, the court upheld the primary judge's adverse credit findings against the police officers concerning the grounds for their suspicion and belief. The court found that the stopping and detention of Ms Madden, and her subsequent arrest, were not lawful exercises of power under the relevant sections of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW). The court also concluded that section 43A of the *Civil Liability Act 2002* (NSW) did not apply to exclude liability, as the conduct did not fall within its scope or was excluded by section 3B(1)(a). The findings of malicious prosecution were also upheld, with the court agreeing that the charges were brought without reasonable and probable cause and with malice, supported by the police officer's conduct and omissions. The award of damages, including exemplary damages, was found to be within the primary judge's discretion.