Charara v New South Wales [2009] NSWDC 263

Charara v New South Wales [2009] NSWDC 263

The plaintiff failed to establish any of the pleaded torts. The Court accepted the evidence of Constables Taylor and Duque over the plaintiff's evidence, found that the plaintiff was playing offensive loud music, refused to identify himself, failed to comply with a noise abatement direction, resumed the loud music, resisted arrest and kicked Constable Taylor. On those findings the statutory requirements for arrest were met, the detention following lawful arrest was not false imprisonment, the force used was reasonably necessary, and the charges were brought with reasonable and probable cause and without proven malice. The State therefore had no vicarious liability for any tort.

Jurisdiction
Australia
Judgment Date
21 August 2009
Procedural Posture
Civil Tort Claim for Damages Arising From Alleged Police Wrongful Arrest, Assault, False Imprisonment and Malicious Prosecution / Trial Judgment in the District Court of New South Wales
Outcome
Verdict and judgment for the first defendant against the plaintiff on the action.
Legal Topics
['wrongful Arrest' 'assault' 'false Imprisonment' 'malicious Prosecution' 'noise Abatement Direction' 'police Use of Force' 'indemnity Costs After Offer of Compromise']
['torts' 'civil Procedure' 'police Powers' 'vicarious Liability'] ['wrongful Arrest' 'assault' 'false Imprisonment' 'malicious Prosecution' 'noise Abatement Direction' 'police Use of Force' 'indemnity Costs After Offer of Compromise']

Case Brief

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Procedural Posture

Civil Tort Claim for Damages Arising From Alleged Police Wrongful Arrest, Assault, False Imprisonment and Malicious Prosecution / Trial Judgment in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the police officers wrongfully arrested the plaintiff after an alleged failure to comply with a noise abatement direction.' 'Whether the plaintiff was falsely imprisoned after his arrest and detention pending appearance before a magistrate.' 'Whether the police officers assaulted the plaintiff or used only reasonably necessary force in effecting and maintaining the arrest.' 'Whether the prosecution for failure to cease noise emission, assault police and resist arrest was malicious and without reasonable and probable cause.' 'Whether the State of New South Wales was vicariously liable for the alleged torts of the police officers.']

Ratio Decidendi

The plaintiff failed to establish any of the pleaded torts. The Court accepted the evidence of Constables Taylor and Duque over the plaintiff's evidence, found that the plaintiff was playing offensive loud music, refused to identify himself, failed to comply with a noise abatement direction, resumed the loud music, resisted arrest and kicked Constable Taylor. On those findings the statutory requirements for arrest were met, the detention following lawful arrest was not false imprisonment, the force used was reasonably necessary, and the charges were brought with reasonable and probable cause and without proven malice. The State therefore had no vicarious liability for any tort.

Court Disposition

Verdict and judgment for the first defendant against the plaintiff on the action.

Orders

  • ['Verdict and judgment for the first defendant against the plaintiff on the action.' "Plaintiff to pay the first defendant's costs of the action up to 25 June 2009 on the ordinary basis and thereafter from 26 June 2009 on an indemnity basis." 'Direct that the exhibits remain with the file to be returned after 28...