State of New South Wales v Zreika

Judgment 1MACFARLAN JA: I agree with Sackville AJA. 2WHEALY JA: I agree with Sackville AJA. 3SACKVILLE AJA: This is an appeal from a judgment of a Judge of the District Court (Walmsley DCJ), awarding the respondent damages of $304,556 plus interest against the appellant (" the State "). The primary Judge found that the respondent had been unlawfully arrested and assaulted on 25 July 2006 and was thereafter the subject of a malicious prosecution. The damages awarded included compensatory, aggravated and exemplary damages. 4The respondent's arrest related to a shooting that took place late at night on 20 July 2006 at a home unit in Parramatta. The respondent was arrested at his place of work on 25 July 2006 and charged with shooting with intent to inflict grievous bodily harm, malicious wounding and common assault. He was taken into custody at the time of his arrest and remained in custody until granted bail, subject to stringent conditions, on 21 September 2006. 5The Director of Public Prosecutions withdrew the charges against the respondent on 25 January 2007 and the charges were formally dismissed on that day. It was common ground in the present proceedings that the respondent had nothing to do with the shooting. 6The trial occupied 13 hearing days. A large number of witnesses gave evidence. They included the respondent and Detective Constable Ryder (" DC Ryder") who (as both parties accepted) was to be treated as the arresting officer. His Honour found that DC Ryder's evidence lacked frankness, was often untruthful and could not be relied on in relation to " any matter of importance " (at [72], [233]). By contrast, his Honour accepted the respondent as a witness who was doing his best to tell the truth. 7The primary Judge helpfully summarised (at [2]-[8]) the factual background at the outset of his very careful and detailed judgment, as follows: "The [respondent] was born on 30 January 1979 and is aged 32. On 20 July 2006 he was living with his parents in Greenacre, an outer suburb of Sydney, but staying the night with his girlfriend, who lived at North Parramatta. On that evening, a serious offence was committed in a home unit in George Street, Parramatta. A man called Thomas Neville was shot on the right side of his scrotum. Police were notified, and attended. Later that night the [respondent] went into a [Coles Express service station] store in Parramatta wearing a top similar to the one the shooter had worn. He was feeling despondent after an argument with his girlfriend, and was engaging in a bizarre monologue. He said aloud, while in the store, either that he had just killed, or felt like killing, 'some cunt', and that he had 'had enough'. He was recorded on audio and video film while in the store. Although he did not fit the description of the shooter as described by witnesses, police decided to charge him. He had been in trouble with the police before, for armed robbery (nine years before) and deemed supply of drugs (seven years before). Because of his record for armed robbery, and the fact that a gun had been used in the new offence, police decided he might be too dangerous for detectives to arrest. So the investigating team brought in the State Protection Group, a specialist group of police who are experienced at dealing with violent and armed criminals. On 25 July, five days after he had entered the store in Parramatta, while the [respondent] was at work with his elderly father, who was helping him in his vehicle glazing business, the [respondent] was arrested by a group of men from the Operational Training Unit (OUT), part of the State Protection Group. Some were carrying shotguns and wearing special clothing. The arrest was in a public area of Artarmon. The events shocked the [respondent], who immediately protested his innocence. But he was pushed to the ground, and he says he was dragged in the dirt and trodden on, and had a shotgun pointed at him. When told by police what he was to be charged with, he immediately told them they had the wrong man and asked for an identification parade. He was handcuffed and handed over to investigating police, who took him to Chatswood Police Station, where he was charged with common assault, shotting at a person with intent to inflict grievous bodily harm, and malicious wounding. Of those offences, the most serious, shotting at a person, carries a maximum term of imprisonment of twenty five years. He was not given police bail. He appeared before the Local Court at Hornsby on 26 July, at Parramatta on 9 August and on 16 to 17 August. Bail was applied for on the first and third appearances. Each time, bail was refused. Police prosecutors, who received instructions from investigating police, opposed bail on each occasion. Because the charges were serious, police prosecutors eventually handed over the prosecution to the Director of Public Prosecutions. This occurred on 18 September 2006. When the [respondent] was next before the court, on 21 September 2006, the DPP did not oppose bail. He was given bail on stringent conditions. ... Once the DPP had reviewed the case, all charges were withdrawn. Formal dismissal of them occurred on 25 January 2007. By then the [respondent] had endured over two months in custody. He had lost his business. He had been left with a debt of over $30,000 for borrowings for his business, much of which he had had to spend on legal fees. He says the police officers who arrested him had no right to arrest him, and are liable for false imprisonment. In charging him and then maintaining the proceedings in the face of strong exculpatory evidence, some of which they never disclosed to him or his lawyers, and some of which they deliberately ignored, he says they committed the tort of malicious prosecution. Further, he says police used quite unnecessary force when they arrested him, and are thereby liable in damage for trespass ...". 8It is not necessary for the purposes of this appeal to recount the primary Judge's reasoning at length. I outline briefly below the critical findings made and the conclusions reached by his Honour.