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

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

The appeals failed because the appellants did not demonstrate appellable error in the primary judge's refusal to find malice: evidentiary weakness, reliance on flawed witnesses, and possible incompetence or negligence did not compel a finding that any prosecutor acted for an illegitimate dominant purpose. The challenges to reasonable and probable cause for Messrs Kassas, Pound and Ashley Saad did not affect the outcome once malice was not established, and the Court rejected the developed challenges to the primary judge's reliance on the listening device and other evidence. The State's cross-appeal succeeded because the primary judge applied the wrong standard to Mr El-Wasfi's wrongful...

Jurisdiction
Australia
Judgment Date
18 December 2017
Procedural Posture
Civil Appeals and Cross Appeal Arising From Claims for Malicious Prosecution and Wrongful Arrest Following Failed Criminal Prosecutions / Appeal From Supreme Court Common Law Judgment and Costs Orders
Outcome
Appeals dismissed; State granted leave to cross-appeal on ground 1; cross-appeal allowed; judgment for Mr El-Wasfi set aside and proceeding dismissed; costs questions reserved for agreed orders or written submissions.
Legal Topics
['malicious Prosecution' 'malice' 'reasonable and Probable Cause' 'wrongful Arrest' 'false Imprisonment' 'reasonable Suspicion' 'police Arrest Without Warrant' 'new Case on Appeal' 'costs']
['torts' 'criminal Procedure' 'police Powers' 'civil Procedure'] ['malicious Prosecution' 'malice' 'reasonable and Probable Cause' 'wrongful Arrest' 'false Imprisonment' 'reasonable Suspicion' 'police Arrest Without Warrant' 'new Case on Appeal' 'costs']

Case Brief

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Procedural Posture

Civil Appeals and Cross Appeal Arising From Claims for Malicious Prosecution and Wrongful Arrest Following Failed Criminal Prosecutions / Appeal From Supreme Court Common Law Judgment and Costs Orders

Legal Issues

  1. 1 ['Whether the primary judge erred in failing to find malice on the part of police and DPP prosecutors in relation to the prosecutions of the appellants.' 'Whether the primary judge erred in finding reasonable and probable cause to prosecute Messrs Kassas, Pound and Ashley Saad.' 'Whether the arrest of Mr El-Wasfi on 23 August 2002 for concealing a serious indictable offence was lawful.' 'Whether the appellants could rely on appeal on an unpleaded and unparticularised case concerning reasonable excuse for non-disclosure.' 'Whether the costs discretion should be re-exercised following the outcome of the appeal and cross-appeal.']

Ratio Decidendi

The appeals failed because the appellants did not demonstrate appellable error in the primary judge's refusal to find malice: evidentiary weakness, reliance on flawed witnesses, and possible incompetence or negligence did not compel a finding that any prosecutor acted for an illegitimate dominant purpose. The challenges to reasonable and probable cause for Messrs Kassas, Pound and Ashley Saad did not affect the outcome once malice was not established, and the Court rejected the developed challenges to the primary judge's reliance on the listening device and other evidence. The State's cross-appeal succeeded because the primary judge applied the wrong standard to Mr El-Wasfi's wrongful...

Court Disposition

Appeals dismissed; State granted leave to cross-appeal on ground 1; cross-appeal allowed; judgment for Mr El-Wasfi set aside and proceeding dismissed; costs questions reserved for agreed orders or written submissions.

Orders

  • ["In Mr El-Wasfi's appeal (2016/295735): Appeal dismissed." '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.' 'Direct the State to file a notice of cross-appeal in accordance with the grant of leave within 7 days, and otherwise...