AJW and 2 ors v State of New South Wales

AJW and 2 ors v State of New South Wales - [2003] NSWSC 803 - NSWSC 2003 case summary — Zoe

[6]

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.

[11]

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.

[14]

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 )."

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