Chen v State of New South Wales (No 2) [2016] NSWCA 292

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v State of New South Wales (No 2) [2016] NSWCA 292 Hearing dates: 29, 30 September 2016 Decision date: 27 October 2016 Before: McColl JA at [1]; Leeming JA at [2]; Emmett AJA at [61] Decision: (1) To the extent necessary, there be a grant of leave to appeal. (2) Appeal dismissed. (3) Appellants to pay 50% of the costs of the State as agreed or assessed. Catchwords: APPEALS – findings of fact – civil standard – sufficient to reach a state of actual satisfaction – unnecessary to exclude all other possibilities – primary judge not bound by "findings" of earlier Court of Appeal

APPEALS – competency – whether direction by Registrar to file notice of appeal was grant of leave – separate plaintiffs in single proceeding seeking leave to appeal – whether matter at issue amounting to $100,000 – whether in determining if appeal lay of right, it ought be assumed that appeal is reasonably arguable

POLICE – two police officers arrested appellants – attempt by police officer to delete photographs taken of arrest – photographs recovered from memory of camera – charges for resisting arrest and assaulting police dismissed – appellants brought claim against State alleging tortious conduct by police officers – previous decision of Court of Appeal concluded that on the evidence of first trial, the appropriate finding was that one of the arresting officers had deleted photographs – that arresting officer did not give evidence at second trial – no finding at second trial as to which of at least six police officers deleted photographs – adverse findings against appellants and findings favourable to other arresting officer – whether appellable error in failing to find that first arresting officer deleted photographs – whether any such error affected judgment – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 58, 546 District Court Act 1973 (NSW), s 127(2)(c) Evidence Act 1995 (NSW), s 140 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8 Supreme Court Act 1970 (NSW), s 101(2)(r) Cases Cited: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v State of New South Wales [2012] NSWDC 126 Chen v State of New South Wales [2014] NSWCA 41 Chen v State of New South Wales [2016] NSWCA 177 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 89 ALJR 824 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Gulic v Boral Transport Ltd [2016] NSWCA 269 Hall v van der Poel [2009] NSWCA 436 Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 Pateman v Higgin (1957) 97 CLR 521 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 West v Government Insurance Office of NSW (1981) 148 CLR 62 Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 Category: Principal judgment Parties: Irene Rui Chen (First Appellant) Gong Xiang Xuan (Second Appellant) State of New South Wales (Respondent) Representation: Counsel: CA Evatt, N Ford (Appellants) MJ Windsor SC, MS Spartalis, ND Oreb (Respondent)