BK v NSW

[2026] NSWCA 6

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Trespass to person
3. › Battery
4. › Police use of force during arrest
5. › Whether force used was unreasonable
6. › Whether slamming handcuffed 16-year-old to ground and punching constituted battery
7. › Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231
1. Torts
2. › Trespass to person
3. › Battery
4. › Defence of lawful justification
5. › Onus of proof
6. › Whether trial judge reversed onus of proof
7. › Whether force reasonably necessary
8. › Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231
1. Evidence
2. › Rule in Browne v Dunn
3. › Failure to put respondent's case to plaintiff in cross-examination
4. › Whether respondent precluded from advancing case not put to plaintiff
1. Evidence
2. › Jones v Dunkel inference
3. › Failure to call witnesses
4. › Failure of respondent to call uniformed police officers who witnessed alleged battery
5. › Whether inference should be drawn that evidence would not have assisted respondent's case
6. › Onus of establishing unavailability of witnesses

Quick Take

Officers who witnessed the alleged use of force must be called as witnesses in police battery claims against the State, or their unavailability must be proved, to avoid adverse Jones v Dunkel inferences; the defendant bears the onus of proving lawful justification under LEPRA and this burden must not be reversed.