AJW and 2 ors v State of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (the admission of the previous representations of SMW) 1 BELL J: The plaintiffs sought to adduce evidence from ES of previous representations made to her by SMW. The particulars of the evidence are set out in a notice issued pursuant to s 67 of the Evidence Act 1995 (the Act). 2 The defendant served notice under s 68 of the Act of its objection to the tender of the evidence particularised in subparagraphs (a) (i), (ii), (iv) and (v) of the plaintiffs' notice. In each instance the plaintiffs seek to adduce evidence of previous representations made by SMW in the presence and within the hearing of ES. It is accepted by the defendant that the representations that are sought to be adduced are "first-hand" hearsay for the purposes of s 62 of the Act.

3 In the plaintiffs' submission SMW is a person who is not available to give evidence within the meaning of s 63(1) of the Act. 4 The unavailability of a person to give evidence is defined for the purposes of the Act in Part 2 Cl 4 of the Dictionary. Relevantly cl 4 (1)(e) provides that a person is taken not to be available to give evidence about a fact if: (e) All reasonable steps have been taken, by the parties seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success 5 SMW is the daughter of the first and second plaintiffs. In 1994 she made allegations of a serious character against the plaintiffs. Her younger sister, ES, also made allegations against the plaintiffs. 6 The plaintiffs have not had contact with SMW since 1994. In late 2002 contact was renewed between ES and the plaintiffs. 7 The plaintiffs led evidence on a voir dire hearing from ES and from Gregory Walsh, the solicitor acting for the first and second plaintiffs. At the conclusion of the voir dire hearing I ruled that I would admit the evidence. These are my reasons for making that determination. 8 Following the arrest and charging of her parents ES lived at various addresses. It is not necessary to recite her evidence on this topic in detail. She had contact with SMW in the period April 1994 to March 2003. As at March 2003 ES understood SMW to be living in Eden, New South Wales. Around this time SMW telephoned ES and told her that she was moving to Queensland. She did not give ES any contact details. SMW said that she would keep in touch with ES. ES has not heard from SMW since and does not know of her whereabouts. 9 Mr Walsh spoke with ES in June 2003 and, following this discussion, retained Michael Featherstone, an investigator with a firm named Australian Plaintiff Investigations. He instructed Mr Featherstone to make inquiries in an endeavour to locate SMH. Mr Walsh has used Mr Featherstone on previous occasions in order to locate people. He has found him to be a dedicated investigator. Australian Plaintiff Investigations is based in Brisbane. It has the capacity to undertake inquiries in other States and overseas. 10 Mr Featherstone prepared a report setting out the inquiries that he had made in an effort to locate SMW. The report was prepared in response to a telephone request made by Mr Walsh during the course of the morning and was transmitted to Mr Walsh by facsimile. It is Ex "A" in the voir dire hearing. Mr Featherstone conducted a number of inquiries that included making searches of various databases. He has not been able to locate SMW. 11 Mr Walsh has made inquiries of the plaintiffs concerning SMW's whereabouts. They have not been able to assist him with information in this respect. Mr Walsh considered, in light of things conveyed to him by ES, that SMW would seek to keep her whereabouts secret from the plaintiffs.

12 Mr Walsh has not made inquiries of members of SMH's extended family who were supportive of her in the period following the making of her complaint. The allegations made against the plaintiffs included allegations made by the children of SMW's uncle. Mr Walsh considered that it would be inappropriate for him to make contact with that branch of the family. He believed that he may have cross-examined the uncle's children.

13 The defendant produced a number of documents evidencing its inquiries to locate SMW in answer to a call made by counsel for the plaintiffs. In the s 68 notice, dated 1 September 2003, the defendant asserted that the admission of the previous representations of SMW would occasion it prejudice because it has been unable to locate her. 14 Mr Donovan QC, who appears on behalf of the defendant, submitted that notwithstanding this history, I would find that the plaintiffs had failed to discharge the burden of establishing that SMW is not available to give evidence within the meaning of Pt 2 cl 4 (1) (e) of the Act. In this respect he drew attention to the need for the plaintiffs to establish that "all reasonable steps" (emphasis added) had been undertaken to find SMW. He referred me to the judgment of O'Loughlin J in De Rose v the State of South Australia (No 4) [2001] FCA 1616. His Honour there observed at [14]: "The State is not relying of s 63. It is not suggesting these parties are not available, even though it was said of one of them that his location could not be found as a result of internet searches."

In Mr Donovan's submission the investigator's report was silent on the question of what, if any, inquiries he made in consequence of the searches that he conducted of various electronic databases. 15 I do not consider O'Loughlin J's observations in De Rose support Mr Donovan's contention that the evidence falls short of establishing that all reasonable steps have been taken to find SMW. The plaintiffs retained an experienced investigator in order to locate SMW. I infer from Mr Featherstone's report (and taking into account Mr Walsh's estimate of his ability as an investigator) that he carried out inquiries that might reasonably be expected to have been undertaken by a competent investigator in an effort to locate SMW. 16 I was satisfied upon the balance of probabilities that "all reasonable steps" have been taken to find SMW without success. 17 I was satisfied that SMW is a person who is not available to give evidence about an asserted fact within the meaning of s 63 of the Act. ES's evidence of the representations made by SMW and heard by her is admissible to prove the facts that SMW intended to assert thereby under s 63(2)(a).

18 Mr Donovan submitted in the alternative that the evidence should be rejected in the exercise of the discretion conferred by s 135 of the Act. That section provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: "(a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 19 Mr Donovan identified a number of bases upon which he contended that the balancing of the considerations in s 135 (a) and (c) operated to favour rejection of the evidence. Firstly he relied upon the inability to test SMW's assertions in cross-examination. He acknowledged that in any case in which first-hand hearsay is admitted under s 63 the opposing party will be deprived of the opportunity to cross-examine the maker of the representations. In the circumstances of this case he contended this disadvantage was productive of substantial prejudice. SMW is a person who has knowingly made false representations when she was under an obligation to tell the truth. Allied to this consideration was Mr Donovan's submission that ES, too, is a person who has knowingly made false representations when under an obligation to tell the truth. Her evidence as to representations made by SMW must be considered be of dubious reliability. In these circumstances the balancing of the considerations set out in s 135(a) favoured exclusion upon a view that the probative value of the evidence was outweighed by the prejudice to which I have referred.

20 The probative value of the evidence is "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The question of whether in exercising the discretion conferred by s 135 (or in a criminal case the discretion conferred by s 137) the Court is to take into account the reliability of the evidence in assessing its probative value is controversial: R v Singh-Bal (1997) 92 A Crim R 397 at 430; cf Papakosmas v the Queen [1999] HCA 37; 196 CLR 297 per McHugh J at [86]. I accepted for the purposes of the argument that I might have regard to the reliability of the evidence in considering whether its probative value was outweighed by the considerations in s 135(a) and (c). (No submission concerning s 135(b) was pressed in oral argument). 21 The circumstance that the probative value of evidence may be relatively slight is not a reason for excluding the evidence under s 135. Such probative value as the evidence may possess must be substantially outweighed by the danger of unfair prejudice. 22 This is not a case in which there exists a danger of unfair prejudice in that the evidence may be relied upon on a basis logically unconnected with the issues in the case: R v Lockyer (1996) 89 A Crim R 457 per Hunt CJ at CL at 460. 23 The unfair prejudice that Mr Donovan identified is the inability to cross-examine SMW. This procedural disadvantage has been held to amount to "unfair prejudice" for the purpose of the exercise of the s 135 discretion. The cases are referred to in Papakosmas by McHugh J at [93]. His Honour doubted the rightness of the approach but did not find it necessary to decide the point. Heydon JA (as his Honour then was) in R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at [64] expressed the need for caution in allowing consideration of the inability to cross-examine the maker of a previous representation to justify discretionary exclusion of otherwise admissible evidence. I accept that there may be cases where the inability to cross-examine would justify the discretionary exclusion of evidence under s135. However, I was not persuaded that this was such a case. The circumstance that SMW has deliberately made false representations on occasions when she was under an obligation to tell the truth is acknowledged by the plaintiffs. While the inability to challenge her in cross-examination as to the truth of the representations is a disadvantage to the defendant, I did not consider it to amount to unfair prejudice to it. The limitations that must apply to the assessment of the weight to be accorded to evidence of SMW's representations as to her sexual conduct (in the absence of credible independent evidence to support them) are, to my mind, apparent.

24 Mr Donovan further submitted that the evidence should be excluded because its probative value is substantially outweighed by the danger that its admission might cause or result in undue waste of time: s 135(c). The undue waste of time identified included that the defendant may wish to call evidence to rebut the assertion that there existed a sexual relationship between MO'D (the informant) and SMW during the period of the investigation and prosecution. I do not consider the possibility of evidence of this description being led in the defendant's case to involve a danger of an undue waste of time.

25 Principally Mr Donovan submitted that the admission of the evidence would result in an undue waste of time because it would require the Court to consider whether there existed a sexual relationship between the informant and SMW at a time when the informant was or may have been the prosecutor. In Mr Donovan's submission, even if be established that an intimate relationship between the informant and SMW commenced in May or June 1994, this circumstance is not capable of bearing on the question of whether the informant was possessed of an improper motive in bringing or maintaining the prosecution against each of the plaintiffs. The existence of such a relationship in Mr Donovan's submission may have made the informant more willing to believe the truth of SMW's complaint. This was far removed from evidence tending to establish that the informant's belief was other than that in preferring the charges, and in conducting further investigations in support of the prosecution, he was bringing the true offenders to justice.

26 The plaintiffs' case is that the informant was actuated by malice and that the defendant is vicariously liable for his tortious conduct. For the purposes of the tort of malicious prosecution malice embraces any motive of the defendant in securing the conviction of the plaintiff which is indirect and improper: Australian Torts Reporter, CCH, 46-240 ¶ citing Hicks v Faulkner (1881) 8 QBD 167 per Hawkins J at pp 174-175. 27 Clerk & Lindsell on Torts, 17th Ed, Sweet & Maxwell, discusses the concept of "improper motive" in the context of malicious prosecution at [15-37]: " Improper motives. The term "malice" in this form of action is not to be considered in the sense of spit or hatred against an individual, but of malus animus , and as denoting that the party is actuated by improper and indirect motives (citing Parke B in Mitchell v Jenkins (1833) 5 b & Ad 588 at 595; and Pike v Waldrum [1952] 1 Lloyd's Rep 431 at 451-542). The proper motive for a prosecution is, of course, a desire to secure the ends of justice (citing Alderson B in Stevens v Midland Counties Ry (1854) 10 Ex 352 at 56 and Wershof v Commissioner of Police for the Metropolis [1978] 3 All E R 540). If a plaintiff satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was , he proves his case on the point….the absence of belief in the defendant's mind as to the merits of the case will no doubt afford strong evidence of malice; so also any lack of good faith in his proceedings, any indication of a desire to concoct evidence or procure a conviction at any cost (citing Clarke v Postan (1834) 6 C & P 423 and Stevens v Midland Counties Ry ; Heath v Heape (1856) 1 H & N 478 and Busst v Gibbons (1861) 30 LJ Ex 75)….A plaintiff may sometimes be able to show what the exact motive was, as by proving expressions of spite or ill-will on the defendant's part; or by showing that he had some collateral object to secure (citing Stevens )."

28 It seemed to me that evidence that the informant was involved in a sexual relationship with the complainant, SMW, at a time when the investigation of her complaint was on foot is capable of bearing on the question of whether he was possessed of an improper or collateral motive in bringing or maintaining the prosecution. I was thus not persuaded that the evidence was irrelevant for the purposes of s 55 of the Act. I did not accept that consideration of whether there existed a sexual relationship between the informant and SMW at the time of the investigation and prosecution of the charges would involve an undue waste of time. *****

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