Charara v State of New South Wales

McCOLL JA: This is an application for leave to appeal by Jamal Charara from a decision of Hungerford ADCJ in which his Honour dismissed the applicant’s claim for damages against the State of New South Wales in respect of allegations of wrongful arrest, assault, false imprisonment and malicious prosecution: Charara v New South Wales [2009] NSWDC 263.

There was a substantial factual controversy at the trial as to the circumstances in which the applicant came to be arrested. The primary judge did not accept the version of those events given by the applicant and his de facto partner. He fully accepted the version of the events given by the two police officers who effected the arrest. In those circumstances his Honour concluded that the police were entitled to arrest the applicant. He also rejected the applicant’s assertion that the defendant had either acted maliciously or without reasonable and probable cause, those being the two elements of the tort of malicious prosecution which were in issue: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 (at [1]).

His Honour’s decision was based on findings of fact which in order to be overturned on appeal would require the applicant to demonstrate incontrovertible evidence to the contrary in terms of Fox v Percy [2003] HCA 22, (2003) 214 CLR 118. In my view the applicant has not demonstrated any aspect of his Honour’s judgment which would attract such review of his Honour’s findings. The fact, if it be the case, that there were alternative means which the police could have employed in the circumstances to seize equipment or to issue a warning, does not in my view undermine his Honour’s finding that the police were in the circumstances entitled to arrest the applicant.

I would dismiss the application for leave to appeal with costs.

HANDLEY AJA : I agree.

McCOLL JA : Those are the orders of the court.