State of New South Wales v Madden [2024] NSWCA 40

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Madden [2024] NSWCA 40 Hearing dates: 21-22 August 2023 Date of orders: 29 February 2024 Decision date: 29 February 2024 Before: Bell CJ at [1]; Leeming JA at [209]; Stern JA at [239] Decision: Appeal dismissed with costs. Catchwords: APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State's submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial TORTS – Trespass to the person – Battery – Whether stopping and detaining of the Respondent was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether Respondent was "stopped" – Where small period of time between initial "stopping" and time at which the Respondent was told she would be searched – Where Respondent was not physically constrained and had a limited ability to walk around – Whether police had a suspicion on reasonable grounds that any of the circumstances in s 21 existed – Where primary judge made adverse credit findings in relation to police officer's evidence as to the matters that informed his suspicion TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether Respondent's arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether police officer suspected on reasonable grounds that the Respondent had committed an offence – Where a person other than the Respondent was carrying a bag which contained a knife – Where primary judge made adverse credit findings in relation to police officer's evidence as to his belief that the Respondent was carrying the bag TORTS – Trespass to the person – False imprisonment – Whether s 43A of the Civil Liability Act 2002 (NSW) applied to exclude any liability arising from the conduct of the Appellant – Whether s 3B(1)(a) applied to exclude the operation of s 43A – Whether there was an intentional act done with intent to cause injury or death – Whether deprivation of liberty falls within the definition of "injury" TORTS – Malicious prosecution – Whether charges were brought against the Respondent without reasonable and probable cause and with malice – Where police officer made repeated references to his previous interactions with the Respondent and omitted exculpatory material from the Facts Sheet including that the Respondent was not holding the handbag in which a knife and various items of new male clothing were found TORTS – Malicious prosecution – Damages – Whether award of damages included compensation for custody that was not a natural and probable consequence of the prosecution – Whether causal connection between the charges laid against the Respondent and the Respondent's detention severed by the refusal of the Respondent's bail application or by the revocation of her parole TORTS – Damages – Whether award of exemplary damages excessive – Whether primary judge took into account damages and aggravated damages awarded under each head of damage Legislation Cited: Bail Act 2013 (NSW) ss 43, 74 Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Liability Act 2002 (NSW) ss 3B, 11, 18, 43A, Pts 1 and 2 Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW) Civil Liability Legislation Amendment Act 2008 (NSW) Crimes Act 1900 (NSW) ss 58, 527C Crimes and Courts Legislation Amendment Act 2006 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21, 99 Legal Profession Act 2004 (NSW) Motor Accident Injuries Act 2017 (NSW) Summary Offences Act 1988 (NSW) s 11C Victims Rights and Support Act 2013 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 51.40 Cases Cited: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 Cleary v Wilcocks (1946) 63 WN (NSW) 101 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10 Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31 Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 Director of Public Prosecutions v Brooks [1974] AC 862 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 Houda v The State of New South Wales [2005] NSWSC 1053; [2005] Aust Torts Reports 81-816 House v The King (1936) 55 CLR 499; [1936] HCA 40 James v Hill [2004] NSWCA 301 New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 R v English (1989) 44 A Crim R 273 R v Filippetti (1978) 13 A Crim R 335 Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 State of New South Wales v Spedding [2023] NSWCA 180 State of New South Wales v Williamson [2011] NSWCA 183 Trobridge v Hardy (1954) 94 CLR 147; [1955] HCA 68 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Van Haren v Van Ryn [2023] NSWSC 776 Whitbread v Rail Corporation NSW [2011] NSWCA 130 White v Johnson (2015) 87 NSWLR 779; [2015] NSWCA 18 Category: Principal judgment Parties: State of New South Wales (Appellant) Ebonie Madden (Respondent) Representation: Counsel: