State of NSW v Hathaway [2010] NSWCA 184

New South Wales Court of Appeal

CITATION: State of NSW v Hathaway [2010] NSWCA 184 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11 March 2010, 12 March 2010

JUDGMENT DATE: 6 August 2010

JUDGMENT OF: Tobias JA; McColl JA; Macfarlan JA

(a) Appeal allowed. (b) Set aside the judgment and orders made by Simpson J on 7 May 2009. (c) Verdict and judgment for the appellant with respect to the respondent's malicious prosecution cause of action as pleaded in paragraph 7 of the respondent's Amended Statement of Claim filed on 23 August 2006. DECISION: (d) Direct that a new trial be held limited to the issue of liability with respect to the respondent's assault cause of action as pleaded in paragraph 4 of the respondent's Amended Statement of Claim filed on 23 August 2006. (e) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951, if otherwise qualified. (f) Direct that with the consent of the parties and the judge hearing the new trial on the assault cause of action, the latter proceed on evidence already admitted before Simpson J. (g) Direct that the judge hearing the new trial may admit further evidence upon application by either party, should he or she consider it appropriate to do so in the interests of justice. (h) The costs of the trial and the new trial to be determined by the judge hearing the new trial.

CATCHWORDS: APPEAL – civil – credibility – whether failure to pay proper regard to respondent's unreliability as witness - APPEAL – civil – evidence – whether evidence supports conclusion – whether failure to assess or address evidence – sufficiency of evidence - APPEAL – civil – retrial – severance of issues – whether damages should be subject of new trial - EVIDENCE – proof – standard of proof – civil – application of Briginshaw principle - EVIDENCE – witnesses – unexplained failure to call witnesses – inferences - TORTS – intentional – malicious prosecution – whether charges brought and prosecuted in absence of reasonable and probable cause and with actual malice – whether informant aware that knife was planted by police officer - TORTS – intentional – trespass to person – assault – whether police officer struck respondent on face with baton