El-Wasfi v State of New South Wales; Kassas v State of New South Wales [2017] NSWCA 332

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: El-Wasfi v State of New South Wales; Kassas v State of New South Wales [2017] NSWCA 332 Hearing dates: 15, 16 November 2017 Decision date: 18 December 2017 Before: Leeming JA at [1]; Simpson JA at [230]; Payne JA at [231] Decision: In Mr El-Wasfi's appeal (2016/295735): 1. Appeal dismissed. 2. Grant leave to the State to cross-appeal, confined to ground 1 of the draft notice of appeal contained at page 68 of the Orange book. 3. Direct the State to file a notice of cross-appeal in accordance with the grant of leave within 7 days, and otherwise dispense with the requirements as to service. 4. Cross-appeal allowed. 5. Set aside the judgment in favour of the third plaintiff Mr El-Wasfi in proceeding 2007/265173 entered on 12 September 2016 and the orders made on 21 October 2016 as to costs and in lieu thereof order that the proceeding be dismissed. 6. In proceeding 2008/289620, set aside the orders as to costs made on 21 October 2016. 7. Direct the parties to supply agreed orders as to costs, or in default of agreement, written submissions as to costs not exceeding five pages, by 8 February 2018, with a view to remaining issues being decided on the papers.

In the appeal brought by Messrs Kassas, Pound and Ashley Saad (2017/293409), 1. Appeal dismissed. 2. Direct the parties to supply agreed orders as to costs, or in default of agreement, written submissions as to costs not exceeding five pages, by 8 February 2018, with a view to remaining issues being decided on the papers. Catchwords: MALICIOUS PROSECUTION – civil proceedings brought by accused following failed prosecution for murder – challenge to failure to find malice – no appellable error – application of principle in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 – challenge to failure to find absence of reasonable and probable cause – appeal dismissed