Shepherd v State of New South Wales [2022] NSWCA 145

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shepherd v State of New South Wales [2022] NSWCA 145 Hearing dates: 5 April 2022 Date of orders: 11 August 2022 Decision date: 11 August 2022 Before: Leeming JA at [1] Brereton JA at [2] Beech-Jones JA at [13] Decision: (1) Appeal dismissed. (2) The Appellant pay the Respondent's costs of the Appeal. Catchwords: APPEAL – alleged assault by police – appeal from dismissal – appellant said he was assaulted as he confronted police over alleged failure to protect his father from neighbour – claims excessive force applied – claimed femur deliberately broken – police claim appellant represented threat to neighbour who was in their custody – claimed only applied "check drill" and appellant fell over – primary judge preferred evidence of police officers – dismissed claim – whether primary judge afforded proper weight to medical notes recording that applicant was assaulted – whether primary judge made finding that appellant and his mother concocted and colluded in their evidence – whether primary judge was obliged to make finding that police witnesses participated in a re-enactment of incident and their evidence was contaminated – all grounds rejected – appeal dismissed Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Mastronardi v State of New South Wales [2007] NSWCA 54 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 State of New South Wales v Shepherd [2019] NSWCA 261 Category: Principal judgment Parties: Justin Wayne Shepherd (Appellant) State of New South Wales (Respondent) Representation: Counsel: Mr D Toomey SC; Mr S Holmes (Appellant) Mr L Gyles SC; Mr R Coffey (Respondent)