Murphy v The State of New South Wales [2023] NSWSC 407

Supreme Court New South Wales

Medium Neutral Citation: Murphy v The State of New South Wales [2023] NSWSC 407 Hearing dates: 29 August 2022 - 7 September 2022 Date of orders: 27 April 2023 Decision date: 27 April 2023 Jurisdiction: Common Law Before: Davies J Decision: The plaintiff should bring in Short Minutes to reflect these reasons Catchwords: TORTS — trespass to the person — false imprisonment — wrongful arrest — where plaintiff arrested on two occasions — in relation to two sexual encounters with two separate women — ss 61J and 59(1) of the Crimes Act 1900 (NSW) — BDSM including acts of sex and violence — whether arrests lawful — ss 99 and 202 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police officers suspected on reasonable grounds that it was necessary to arrest the plaintiff — where failure to provide reasons for arrests — whether arrests became lawful when reasons provided later — materiality — where no satisfactory reason offered for failure on two occasions of non-compliance — where breach not technical but a failure to appreciate statutory obligations — where plaintiff falsely imprisonment for 2 hours in relation to first arrest — 24 hours in relation to second arrest — plaintiff entitled to damages for the two arrests TORTS — malicious Prosecution — elements — where proceedings terminated in favour of plaintiff in relation to both complaints — whether defendant acted with malice — whether absence of reasonable and probable cause — objective and subjective tests — where relevant police officers suspected on reasonable grounds that plaintiff had committed offences of sexual assault in relation to first complainant — where police did not have reasonable grounds for suspicion in relation to offence alleged against second complainant — where failure to identify evidence relied upon to hold suspicion and justify second arrest — absence of contemporaneous WhatsApp messages and where police knew missing messages important — where, in relation to each arrest, no evidence of malice — claim for malicious prosecution fails Legislation Cited: Crimes Act 1900 (NSW)ss 59, 61J Criminal Procedure Act 1986 (NSW) Crown Proceedings Act 1988 (NSW) s 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99, 102 Law Reform (Vicarious Liability) Act 1983 (NSW) ss 6, 8 Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318; 213 LGERA 1 Christie v Leachinsky [1947] AC 573 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Hyder v Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571 Lamb v Cotogno (1987) 164 CLR 1 Lule v State of New South Wales [2018] NSWCA 125 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 Michaels v The Queen (1995) 184 CLR 117 Nye v State of New South Wales [2003] NSWSC 1212 R v Rondo [2001] NSWCCA 540 Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 State of New South Wales v Abed [2014] NSWCA 419 State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 State of New South Wales v Randall [2017] NSWCA 88 State of New South Wales v Smith [2017] NSWCA 194 Texts Cited: Nil Category: Principal judgment Parties: Liam Murphy (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Sheller SC (Plaintiff) M S Spartalis & D Hume (Defendant)