Chen v State of New South Wales [2012] NSWDC 126

District Court New South Wales

Medium Neutral Citation: Chen v State of New South Wales [2012] NSWDC 126 Hearing dates: 16, 17, 18, 19, 20, 23, 24, 26, 27 April and 18 June 2012 Decision date: 17 August 2012 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Judgment for the defendant Catchwords: POLICE - allegations of wrongful arrest, false imprisonment, assault, battery, and malicious prosecution Legislation Cited: Crimes Act 1900 Civil Liability Act 2002 Civil Procedure Act 2005 Inclosed Lands Protection Act 1901 Law Reform (Vicarious Liability) Act 1983 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: A v State of New South Wales [2007] HCA 10 Darcy v State of New South Wales [2011] NSWCA 413 Leachinsky v Christie (House of Lords (1946) 1KB 124 State of New South Wales v Williamson [2011] NSWCA 183. Category: Principal judgment Parties: Irene Rui Chen (1st Plaintiff) Gong Xiang Xuan (2nd Plaintiff) State of New South Wales (Defendant) Representation: Mr C Evatt with Ms L Evans (Plaintiffs) Mr M Spartalis (Defendant) Friend & Co Lawyers (Plaintiffs) (Mr Friend) Makinson & d'Apice Lawyers (Defendant) (Mr N Regener) File Number(s): 2011/54439 Publication restriction: None

REASONS FOR Judgment

The plaintiffs' case 1The plaintiffs in these proceedings are Ms Irene Chen and her mother, Ms Gong Xuan. They have brought these proceedings alleging wrongful arrest, false imprisonment, assault and malicious prosecution by two police officers, Joanna Jacques and Daryl Cleofe, in respect of events that occurred at Newtown on Thursday 21 February 2008. 2It is alleged that Ms Chen was sitting in the office of the Laing & Simmons real estate agency on the corner of King and Dickson Streets, Newtown when some time after 1.00 pm the two police officers entered the premises, picked her up, took her outside, dragged her into a small side street and assaulted her. Ms Chen says she was punched in the back and knocked to the ground, then kneed in the back and handcuffed by Officer Cleofe. When Ms Chen's mother, Ms Xuan, came to her assistance, she was grabbed by Officer Jacques, pushed up against a fence and assaulted. Ms Xuan says she was choked by the throat and then pushed to the ground and handcuffed. After some six or seven further police officers arrived on the scene, Ms Chen says she was thrown into the cage of a police van by three or four of them. 3After they were taken to the police station at Newtown, Ms Chen alleges she was further assaulted when she was thrown into a cell, then dragged out of the cell, striking her head on the doorframe, shaken, and dragged back into the cell where she was kicked in the legs. 4It is further alleged by Ms Chen and Ms Xuan that they were wrongfully imprisoned and mistreated in the police station, detained for an excessive period of time, then falsely and wrongfully charged by the police with various offences for which they were later prosecuted, maliciously.