State of New South Wales v McMaster

The State of New South Wales appealed to the Court of Appeal of New South Wales against findings made in favour of the respondents, Georgia Karakizos and Kayla McMaster, who were shot by a police officer. The dispute arose from a police response to a home invasion where the officer, Constable Fanning, shot one of the individuals present. The respondents challenged factual findings made by the trial judge.

The legal issues before the Court of Appeal included whether the test for self-defence established in the criminal case of *Zecevic* applied to civil proceedings, whether Constable Fanning acted in defence of another officer such that the State could rely on the common law defence of self-defence, and whether Constable Fanning was entitled to rely on the defence provided by section 52 of the *Civil Liability Act 2002* (NSW). The court also considered whether leave should be granted to raise a claim not pleaded at trial, which would involve additional factual and legal questions.

The Court of Appeal allowed the appeal, setting aside the orders of the court below. The court refused leave to rely on notices of contention filed by the respondents. The court found that the trial judge had erred in their factual findings. The court determined that the common law defence of self-defence, as articulated in *Zecevic*, was applicable in civil proceedings. The court also considered the application of section 52 of the *Civil Liability Act 2002* (NSW), which provides a defence for actions taken by law enforcement officers in the performance of their duties, provided the force used was not "unlawful".

Consequently, the respondents were ordered to pay the State's costs in the court below and on appeal, with a certificate under the *Suitors Fund Act 1951* (NSW) granted to the respondents if otherwise entitled.