NSW v Beck; Commissioner of Police v Beck

[2013] NSWCA 437

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Malicious prosecution
3. › Reasonable and probable cause
4. › Whether charge fabricated
5. › Whether trial judge erred in treating 'no case' application as determinative of liability
6. › Whether findings of fabrication open on the evidence
1. Evidence
2. › Weight of untested evidence
3. › Police statements tendered by plaintiff but not tested in cross-examination
4. › Whether trial judge erred in dismissing untested statements as 'worthless'
5. › Jones v Dunkel inference
6. › Whether inference of fabrication available from failure to call witnesses
1. Evidence
2. › Standard of proof in civil proceedings
3. › Briginshaw standard
4. › Findings of criminal conduct in civil proceedings
5. › Whether trial judge applied requisite standard of satisfaction for findings of fabrication and criminal offences
1. Appeal
2. › Appellate review of factual findings
3. › Whether trial judge failed to use or palpably misused advantage as trial judge
4. › Fox v Percy principles

Quick Take

A trial judge who dismisses a 'no case to answer' application must then determine liability on the whole of the evidence, not treat the conclusion on the 'no case' application as determinative. Findings of criminal fabrication against police officers in malicious prosecution proceedings require satisfaction to the Briginshaw standard, and inconsistency between accounts does not of itself necessarily bespeak fabrication. A Jones v Dunkel inference permits a court more comfortably to accept one version of events but does not permit a positive finding that the absent witness would have given evidence damaging to the party who failed to call them. In assessing exemplary damages for malicious prosecution, subsequent conduct by other officers in disciplinary proceedings is an irrelevant consideration. A police disciplinary decision under s 173 of the Police Act 1990 (NSW) is not manifestly unreasonable merely because the decision-maker accepted the officer's own version of events and still found the conduct seriously inappropriate. The test for offensive conduct under s 4(1) of the Summary Offences Act 1988 (NSW) focuses on whether a hypothetical ordinary reasonable person, if present, could have been offended — not whether anyone was actually present.