BK v State of New South Wales

2025/00116673

EVIDENCE - The applicant commenced proceedings in the District Court for the recovery of damages for assault and battery, arising from his interaction with members of the NSW Police Force on 20 December 2019. Specifically, the applicant contended that, during his otherwise lawful arrest, police officers used force that exceeded what was reasonably necessary as required by s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).The applicant contends that the trial judge erred in three respects: (i) by failing to apply the rule in Browne v Dunn when evaluating the plaintiff's "unchallenged evidence on critical issues of fact"; (ii) by failing to draw a Jones v Dunkel adverse inference in respect of an unexplained failure to call certain police officers; and (iii) by finding that the use of force in arresting the plaintiff was lawfully justified pursuant to s 230 of LEPRA. The respondent argues that none of these grounds is an issue of principle or question of public importance, and on its view, that the applicant has not identified an arguable error.