Chen v State of New South Wales [2014] NSWCA 41

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v State of New South Wales [2014] NSWCA 41 Hearing dates: 26, 27 September 2013 Decision date: 10 March 2014 Before: Basten JA at [1]; Meagher JA at [91]; Tobias AJA at [92] Decision: (1) Grant each applicant leave to appeal. (2) Set aside the judgment and orders in the District Court. (3) Direct that the costs of the first trial be in the discretion of the judge on the retrial. (4) Order the respondent to pay the applicants' costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL AND NEW TRIAL - challenge to findings of fact - photographs of arrest - whether police deleted images on camera - failure of trial judge to make a finding as to whether images were deleted - relevance of images to applicants' case - issue of credibility of police - other findings based on acceptance of police evidence challenged

APPEAL AND NEW TRIAL - appeal - interference with findings of fact - questions of credibility to be resolved - need for new trial - whether substantial wrong or miscarriage - Uniform Civil Procedure Rules (NSW), r 51.53

PROCEDURE AND PRACTICE - leave to appeal - requirement for leave to appeal where likely award of damages is below limit - District Court Act 1973 (NSW) s 126