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Costs of defending criminal proceedings flowing from wrongful arrest not recoverable December 21, 2018

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State of New South Wales v Cuthbertson [2018] NSWCA 320

The State sought leave to appeal against two aspects of the award of damages: (i) the award relating to legal costs incurred by Mr Cuthbertson in defending the criminal proceedings;

the State contended that this Court’s decision in New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 was wrongly decided, to the extent it is authority for the proposition that a plaintiff is entitled to recover by way of damages in subsequent civil proceedings the costs incurred in successfully defending criminal proceedings.

 It cannot be said that legal costs incurred in defending a charge of resisting an officer in the course of duty are the ‘natural and probable consequence’ of the tortious conduct of wrongful arrest. Although harm suffered in resisting arrest, such as physical injury or property damage, is a natural and probable consequence of the wrong, the costs incurred in what ultimately turns out to be a failed prosecution are not: [44]–[45]; [114]; [135]–[136]; [161].

(ii) Damages for the tort of wrongful arrest may be distinguished from the damages that may be claimed for the tort of malicious prosecution, where damages for the costs of defending the malicious prosecution are recognised as being recoverable. The bringing of the prosecution was a different and separate process, and there was no allegation of wrongful or tortious conduct on the part of police in the present case: [46]–[47]; [114]; [137]; [145]; [161].

(iii) A party cannot avoid the constraints on the circumstances in which costs may be awarded in criminal proceedings, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 70, by claiming those costs in later civil proceedings. The clear legislative intention of s 70 is to limit the circumstances in which costs in favour of a party who successfully appeals a conviction may be ordered and for the appeal to be the forum in which that determination is made: [63]–[67]; [114]; [144]–[145]; [161].

New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247, not followed

Berry v British Transport Commission [1962] 1 QB 306; [1961] 3 All ER 65; in Avenhouse v Hornsby Shire Council(1988) 44 NSWLR 1; Pritchet v Boevey (1833) 1 C & M 775; 149 ER 612; Loton v Devereux (1832) 3 B & Ad 343; 110 ER 129; Anderson v Bowles (1951) 84 CLR 323; [1951] HCA 61; Diamond v Minter [1962] 1 QB 306, considered

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69; Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377; TCN Channel Nine v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82; Pritchet v Boevey (1833) 1 C & M 775; 149 ER 612; Foxall v Barnett (1853) 23 LJQB 7; 118 ER 1014; Bradlaugh v Edwards (1861) 142 ER 843; 11 CBNS 377; Coleman v Buckingham’s Ltd [1963] SR (NSW) 171; 80 WN 593, referred to

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