Analysis of NSW v Madden: False Imprisonment & Malicious Prosecution
State of New South Wales v Madden [2024] NSWCA 40
In the matter of State of New South Wales v Madden [2024] NSWCA 40, the plaintiff, Ebonie Madden, commenced personal injury proceedings against the defendant, the State of New South Wales, for false imprisonment, assault, battery, and malicious prosecution.
The circumstances of the injury are that on 30 December 2019 the plaintiff (who had recently been released from prison on parole) was charged with custody of a knife in a public place, goods in custody, and resist police. The plaintiff had been with an associate, Mr Dylan Turner, when they were stopped and searched, and the knife was found in a bag held by Dylan Turner. The plaintiff was nonetheless charged, and spent six months in custody bail refused. The charge against the plaintiff was eventually dismissed at a hearing.
On 16 December 2022, the primary judge found the State of New South Wales vicariously liable in tort for the conduct of certain police officers amounting to battery, false imprisonment and malicious prosecution and awarded the plaintiff damages of $320,000 plus interest and costs (Madden v The State of New South Wales [2022] NSWDC 647). The damages award encompassed both general and aggravated and exemplary damages.
The principal issues on Appeal by the defendant were:
- whether the conduct of the trial judge gave rise to an apprehension of bias;
- whether the detention and arrest of the Respondent pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was unlawful;
- whether ss 3B and 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) applied;
- whether the primary judge erred in finding that the charges against the Respondent were brought without reasonable and probable cause and with malice;
- whether the loss for which the Respondent was awarded damages was caused by the conduct of the police officers; and
- whether the primary judge’s award of exemplary damages was excessive.
The Court rejected Appeal Ground 1 on the basis that [at 110]:
The State was given a clear opportunity by the primary judge to raise any issue of apprehended bias or to make an application to the primary judge to disqualify himself but, quite deliberately, chose not to do so. This exchange further undermined the State’s first appeal ground.
The Court rejected Appeal Ground 2 on the basis that [at 128]:
SC Darnton’s evidence that he thought that the Respondent was carrying the bag was rejected by the primary judge. Again, Fox v Percy considerations present an insurmountable hurdle to the State in its belated attempt to challenge the primary judge’s conclusions as to the unlawfulness of the Respondent’s arrest.
The Court rejected Appeal Ground 3 on the basis that [at 128]:
…to conflate subjective intent with motivation or purpose to submit, as the State did, that SC Darnton’s purpose was to enforce the law. In fact, that purpose was given effect by depriving the Respondent of her liberty. That was exactly what SC Darnton intended. Where this was not justified, the deprivation of “liberty” amounted to an injury within the meaning of s 3B(1)(a).
The Court found that the deprivation of a person’s liberty effects an injury on the person within the scope of s 3B(1)(a), and further noted at [146]:
Once it is accepted, as Ibbett did, that “injury” in the context of s 3B(1)(a) need not be a personal injury, then deprivation of liberty may readily be conceived of as involving injury. Such deprivation infringes a person’s common law right to enjoy freedom of movement in his or her community.
The Court rejected Appeal Ground 4 on the basis that [at 180]:
SC Darnton lacked reasonable and probable cause, even on his own evidence, from the time he saw the body worn camera footage. Malicious prosecution may lie equally in the maintenance as well as the initiation of a prosecution.
The Court rejected Appeal Ground 5 on the basis that [at 186]:
The State’s argument on causation assumed and relied heavily upon the primary judge’s conclusion that the “goods in custody charge” was not prosecuted maliciously. As, for reasons already given, I would uphold the cross-appeal in relation to that charge, the Respondent’s argument cannot be sustained. So much is also borne out by the fact that, once the true facts had emerged before Magistrate Milledge, and the discrepancy between those facts and that which was contained in the original Facts Sheet became plain, bail was granted, the Parole Board reversed its earlier cancellation of parole and the Respondent was released from remand where she had unwarrantably been held since January 2020, a period of over 5 months.
The Court rejected Appeal Ground 6.
Ultimately, on 29 February 2024, the New South Wales Court of Appeal dismissed the defendant’s appeal.
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