Moses v State of New South Wales (No. 3) [2010] NSWDC 243

New South Wales District Court

CITATION: Moses v State of New South Wales (No. 3) [2010] NSWDC 243

HEARING DATE(S): 22 – 25 February, 6 May, 28 May, 3 June, 13 August, 9 September, 16 September (written submissions), 17 September 2010 (written submissions)

JUDGMENT DATE: 14 October 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

(1) Judgment for the defendant for the defamation claim brought by the first plaintiff. (2) Judgment for the defendant for the defamation claim brought by the second plaintiff. (3) Judgment for the first plaintiff for the assault claim against the defendant in the sum of $10,000. (4) Judgment for the defendant for the assault claim brought by the second plaintiff. (5) Judgment for the first plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. DECISION: (6) Judgment for the second plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. (7) Judgment for the first plaintiff for the claim for malicious prosecution against the defendant in the sum of $50,000. (8) Liberty to the parties to bring in short minutes of order reflecting the agreed interest calculation in relation to the claims for general and aggravated compensatory damages. (9) Costs reserved. (10) Liberty to apply concerning interest and costs. (11) Exhibits retained for 28 days.

CATCHWORDS: TORT - defamation, assault, wrongful arrest and false imprisonment, malicious prosecution – police, in undercover operation to catch an offender carrying out a series of handbag robberies, arrest the plaintiffs, identifying them because one of them looks similar and is wearing the same jumper as that worn by the offender - whether reasonable force used to apprehend the plaintiffs - whether the matters complained of were published during their arrest - whether these publications were made on an occasion of qualified privilege at common law or pursuant to s 30 Defamation Act 2005 - held that the occasion was privileged - whether the occasion of privilege was lost by reason of malice - held malice not established - whether the circumstances of the arrest and continued detention at the police station amounted to false imprisonment - whether the continuation of the charges against the first plaintiff after further robberies and the arrest of another person for some of the handbag robberies amounted to malicious prosecution - whether lack of reasonable and probable cause established - whether malice established - damages - claim for general, aggravated and exemplary damages