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[2014] NSWSC 1112
Supreme Court of NSW
2014-08-15
Harrison J
Original judgment source is linked above.
Judgment 1HIS HONOUR: Ms Beckett proposes to tender a report dated 21 July 2014, and a supplementary report dated 11 August 2015 [sic, 2014], prepared by Graeme Morgan APM, LL.B, LL.M, M.Bus. Mr Morgan is a retired police officer, having served with the New South Wales Police Service or Police Force for 38 years, rising to the rank of Assistant Commissioner. Since early 2010, Mr Morgan has been an Adjunct Professor at the Centre for Policing Intelligence and Counter-Terrorism at Macquarie University. He was awarded the Australian Police Medal in 1997. 2Ms Beckett has brought proceedings claiming damages for malicious prosecution, following events that led to her conviction and imprisonment for ten years on several charges including solicit to murder. Following a series of appeals and enquiries, some of her convictions were quashed and a new trial ordered. This did not occur until Ms Beckett had served the effective non-parole period of her sentence. A nolle prosequi was ultimately entered with respect to several of the charges, meaning that these charges concluded favourably to her: see Beckett v New South Wales [2013] HCA 17. 3Former Detective Sergeant Peter Thomas was the prosecutor. Ms Beckett's case proceeds upon the fundamental footing that Mr Thomas falsely and fraudulently caused her to be charged with the several offences, using a combination of techniques including intimidation of witnesses, causing witnesses to give false testimony, fabricating or planting physical evidence so as to inculpate Ms Beckett and similar things. These allegations have called into question the propriety of Mr Thomas's conduct in his then capacity as a sworn officer of the New South Wales Police Service. Unsurprisingly in that context, Ms Beckett asserts that the rules and regulations governing police practice and behaviour at the time were flagrantly disregarded and flaunted by Mr Thomas, and that a demonstration of the nature and extent of his misbehaviour informs the case that Ms Beckett seeks to establish against the defendant. 4The defendant opposes the tender of Mr Morgan's reports on several bases. These are considered below. 5It is instructive at this stage to record what it is that a plaintiff, such as Ms Beckett, is required to establish in a case of malicious prosecution. An authoritative pronouncement of the law is to be found in A v New South Wales [2007] HCA 10; (2007) 230 CLR 500. At [1], the Court said this: "[1] ... For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause...". 6In the present proceedings, only the third and fourth elements of the tort remain in contention. 7Central to the issues that are still in dispute is a determination of what was before the prosecutor at the relevant time. The High Court referred to that concept at two locations in the judgment as follows: "[56] Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. ... [71] ... If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff." 8In the present case, Ms Beckett contends not only that Mr Thomas in fact knew where the truth lay concerning the matters with which she had been charged, but also that he knew or believed some fact that was inconsistent with her guilt. In either case, that is because Ms Beckett alleges that Mr Thomas wholly constructed the cases against her, or manipulated existing facts arising out of events in her life in a way that tended to show that she had committed offences when Mr Thomas well knew that she had not. 9It is in that setting that Ms Beckett promotes the tender of Mr Morgan's reports as proving or tending to prove a fact in issue in her case, and in which the defendant correspondingly opposes it.
The reports 10Mr Morgan's principal report takes the form of a series of questions and answers based upon assumptions set out in the report upon which he has been instructed to offer his opinions. Mr Morgan's report attaches a comprehensive letter from Turner Freeman dated 23 June 2014 setting out in detail the various assumptions that are said to inform the questions posed for Mr Morgan and the opinions he is asked to express. 11The first matter concerns the make up and role of the Regional Crime Squad in 1989. At the trial of Barry Catt on sexual assault charges, Mr Thomas gave evidence about his membership of the squad. Mr Morgan was asked to explain what the Regional Crime Squad was in 1989 and how investigations would have been allocated to it. 12The charges faced by Mr Catt have received considerable attention in the proceedings before me. Mr Thomas is said to have been a close friend of Mr Catt. There is likely to be a submission in due course that Mr Thomas's attitude to Ms Beckett was influenced by his friendship with Mr Catt and the events that led to his prosecution, for which Ms Beckett was allegedly significantly responsible. Although it is clear that Ms Beckett wishes to emphasise that Mr Thomas held animus towards her because of what she allegedly did to his friend Mr Catt, there is no direct relationship between Mr Catt's prosecution on charges of sexually interfering with his children and the matters that Ms Beckett is required to prove in these proceedings. 13There does not appear to me to be any relevant connection between Mr Thomas's membership or lack of membership of the Regional Crime Squad in 1989 and the issues at large in these proceedings. If Ms Beckett wishes to contend that Mr Thomas's false assertion in evidence given on oath to the Court in Mr Catt's trial was an indication of the lengths to which he would go to assist Mr Catt, and hence that his attitude to her was all the more apparent from such conduct, she can do so without the need to establish the matters to which Mr Morgan has been directed. 14In my assessment, the matters referred to by Mr Morgan between paragraphs 15 and 32 of his report are completely irrelevant to any issue in these proceedings. I would reject the tender of so much of the report that is concerned with those opinions. 15The second matter concerns the relationship between Mr Thomas and Ms Beckett, arising out of his investigation of a fire on 25 December 1983 at premises in Taree at and from which Ms Beckett conducted the business of a delicatessen and take away food shop. Mr Thomas investigated the fire and ultimately charged Ms Beckett with arson. She complained to the Ombudsman about Mr Thomas in the circumstances and Mr Thomas later acknowledged that Ms Beckett's complaint caused damage to his policing career. The nature and extent of Mr Thomas's attitude to Ms Beckett can be seen from evidence given by him at Mr Catt's trial, and in a letter dated 28 November 1989 in which he described Ms Beckett as "a vexatious complainant" concerned with "political influence to pervert the course of justice." 16Upon the basis of such material, Mr Morgan was asked to express an opinion upon the question of whether it was appropriate police procedure for Mr Thomas to investigate Ms Beckett in July and August 1989 or to be involved in charging her on 24 August 1989. Between paragraphs 34 and 42, Mr Morgan expresses the opinion that it was then and would be now entirely inappropriate for any police officer to be involved in any aspect of policing where the discharge of the duty was influenced by any favour, affection, prejudice or ill will for or against any party concerned. 17It seems to me that Mr Morgan's opinion is unlikely to be controversial. However, the issues that I am required to determine are not whether Mr Thomas was or was not conforming to some particular code of internal police conduct or protocol, but whether or not he instituted or maintained the prosecution of Ms Beckett without reasonable and probable cause and maliciously. The fact that Ms Beckett had acted in a way that led to, or was arguably connected with, Mr Thomas disliking her or worse, and that he can be shown to have said or written things about her that established his attitude towards her as a consequence, are matters that Ms Beckett can establish in these proceedings without the need to prove that Mr Thomas was simultaneously in breach of some applicable police procedures or protocols. 18I do not consider that Mr Morgan's evidence is relevant and I would reject so much of his report as deals with this issue. 19The third matter concerns the extent of the relationship between Mr Thomas and Mr Catt, and the propriety or otherwise of Mr Thomas being assigned to handle the investigation about her in 1989 and thereafter. Mr Morgan was asked to consider whether a police officer, acting reasonably, would have disclosed material going to the relationship with Mr Catt to his superiors. These matters included the fact that Mr Thomas had met Mr Catt through his work as a policeman in Taree, that he had attended Mr Catt's panel beating business on a number of occasions, that Mr Thomas had had repair work done by Mr Catt's business on his car and that Mr Thomas had sold a boat to Mr Catt. Mr Thomas and Mr Catt had also had a drink together at various venues from time to time. 20Once again, the question is not whether it was appropriate for Mr Thomas to handle the investigation of Ms Beckett or whether he should have disclosed his dealings or relationship with Mr Catt to his superiors. Ms Beckett's case is not dependent upon the answer to that question. Ms Beckett's case is relevantly in this respect that Mr Thomas and Mr Catt had a particular friendly relationship and that in the complicated and internecine events that ultimately unfolded, Mr Thomas's actions can be shown, to some extent at least, to have been relevantly informed by that friendship and his correspondingly unfavourable and arguably malicious feelings for and attitude towards her. Once again, the propriety of Mr Thomas's continued assignment to the investigation, or his failure to disclose his relationship with Mr Catt to superiors who may have been concerned about it, are relevantly beside the point of any issue in these proceedings. 21The fourth matter raises the question of whether or not it was normal or appropriate police procedure in 1989 for Mr Thomas, then a sergeant of police, to give evidence on behalf of Mr Catt at his trial, and whether or not there were any applicable police protocols in 1990 dealing with the issue. 22Without descending into the detail of the material upon which Mr Morgan was asked to base his conclusions, the answer is in my opinion completely irrelevant to the present proceedings. 23The fifth matter is concerned with the question of whether or not it was usual police procedure to interview witnesses away from the police station and at a house where there was no one present other than the witness and police officers. This issue arises in the context of Shane Golds and Marie Whalen being interviewed at a house owned by Adrian Newell, a friend of Mr Catt, who was the person alleged by the Crown to be the victim of Ms Beckett's attempts to poison or solicit to murder, and who also gave evidence for the prosecution at Ms Beckett's trial. 24Whilst a person could be forgiven for thinking that any such conduct, whether true or not, is more likely to be encountered in a bad crime novel or a satire on police corruption, the formal propriety or impropriety of the conduct from a police regulations or protocols perspective is once again beside the point. It is apparent that Ms Beckett will in due course wish to contend that Mr Thomas's conduct in respect of these witnesses bespeaks either an attitude to her that is relevant to an issue in the proceedings, or possibly in addition that it demonstrates a propensity or tendency on his part that in turn informs the proof of one or other of the matters that Ms Beckett must establish. At best it appears that Mr Morgan's opinion is that such methods for interviewing witnesses should have been avoided but that it was not definitively proscribed in all circumstances. The legitimate uses to which Ms Beckett can put this evidence seem to me to be entirely unconnected to whether or not it was officially authorised. The ability of an expert to express an opinion so heavily dependent upon particular facts and circumstances also diminishes the value of the opinion in any event. 25The sixth matter to which Mr Morgan's attention has been directed concerns police practice in 1989 with respect to the application for the issue and the subsequent execution of warrants to search premises of suspected persons. Although at one level it might be thought that these are matters of law, and so capable of assessment and determination by a court without the benefit of expert opinion, at another level the issues raise considerable questions concerning police practice. An analogy may helpfully be drawn with evidence given by solicitors as experts in professional negligence claims against lawyers, or with evidence given by doctors in medical negligence proceedings. 26The present case does not involve proceedings against Mr Thomas for some cognate cause of action against a police officer. However, the extent to which Mr Thomas, or those within his command, conformed to proper and applicable practice when applying for or executing the warrant that ostensibly authorised the search of Ms Beckett's premises, appears to me to be capable of informing the issue of what was before Mr Thomas as the prosecutor, in the sense identified and discussed by the High Court in the paragraphs from A's Case extracted above. 27I consider that Mr Morgan has expertise, much in the nature of a lawyer or doctor, to comment upon these matters. I consider that the issue is relevant. I would allow Ms Beckett to tender and to rely upon so much of Mr Morgan's report as deals with these issues, commencing on page 15 under the heading "Sixth Matter" and concluding at paragraph 90 on page 19. 28An incident that has come to be known in these proceedings as "the rock incident" is the subject of the seventh matter. In brief summary, Mr Catt was injured during an incident outside his sister's house on 2 May 1988. It was alleged that he was struck on that occasion by a rock. There is a dispute about how that occurred and whether the rock was wielded by Ms Beckett or thrown by someone else. 29Immediately following this bizarre event, Ms Beckett reported the incident to the police. She and witnesses on her behalf gave statements to a Constable Brown suggesting that Mr Catt's sister came at her with the rock but struck Mr Catt. Constable Brown was also given a version of events by Mr Catt's sister that supported Mr Catt's version, that he was struck with the rock wielded by Ms Beckett. Constable Brown pursued no charges against anyone. 30On the same day, Ms Beckett sought an apprehended violence order against Mr Catt. On 6 May 1988, she also commenced proceedings against him for assault. 31On 21 May 1988, Shane Golds provided a handwritten statement to Ms Beckett's then solicitor in which he substantially supported Ms Beckett's complaint that Mr Catt had punched her. The matter came on for hearing on 3 July 1989 and was adjourned part heard to 22 September 1989. Mr Golds gave evidence on the first occasion. However, on 23 August 1989, Mr Golds was taken from his place of employment to Adrian Newell's empty house in Cornwall Street, Taree where he was interviewed by Mr Thomas and Detective Paget. Mr Golds provided a statement to the police at that time in which he recanted his version favourable to Ms Beckett and his earlier evidence given before the Magistrate on 3 July 1989. The proceedings were never formally completed. 32I have included the details of these events as they inform the fifth matter with which I have already dealt. Mr Morgan was asked whether it was appropriate or usual police practice or procedure in 1989 to interview a witness in a vacant house and take a statement from the witness in the circumstances outlined. 33It seems to me that this question is no more or less than a different way of asking the same question. I do not consider that anything that Mr Morgan has been asked to consider relevantly informs any issue in these proceedings. 34The eighth matter to which Mr Morgan's attention was directed is concerned with the way in which a police officer, adopting usual procedure when charged with the responsibility of investigating a serious matter in 1989, would have behaved and with what steps he or she would have taken. The genesis for this inquiry is the relative paucity of uncorroborated and unsubstantiated evidence concerning the allegation that Ms Beckett solicited an individual to murder Mr Catt. The ultimate charge effectively turned upon the version given by a single witness. It is Ms Beckett's complaint in these proceedings that she was not guilty of the offence charged, and that either a proper investigation would have revealed that, or alternatively, and more particularly, that Mr Thomas or anyone in his position at the time could not have held an honest and reasonable belief in her guilt. 35It is timely to observe that this was a matter that went to trial based upon this very frail evidence, but that it was not taken from the jury beforehand for that reason. The question to my mind is once again not what a reasonable investigator would or should have done at the time, but whether Mr Thomas as the prosecutor was armed with or had material subjectively within his possession which demonstrates that he either wholly constructed the case against Ms Beckett, or manipulated existing facts arising out of events in her life in a way that tended to show that she had committed this offence when he well knew that she had not. Whether Mr Thomas did, if it were the fact, or did not, if it were not the fact, investigate the allegation in accordance with what was reasonable or proper at the time, is once again beside the point currently in issue. Neither a positive nor a negative answer to that question proves or disproves Ms Beckett's case. The matters are also so fact specific that they seem to me to fall beyond the reach of any identifiable expertise. 36The ninth matter falls to be assessed in exactly the same way. Indeed, in the case of the allegation that Ms Beckett solicited Mr Morris to murder Mr Catt, the jury was satisfied of her guilt. That appears to me to give re-emphasis to the fact that the information or knowledge that was subjectively held by Mr Thomas, as opposed to the material or information publicly and notoriously contained within the police brief as matters before him as the relevant prosecutor, is what is important for present purposes. Mr Morgan's expertise cannot inform that issue and has understandably not been directed to it. 37The tenth matter deals with questions of a similar nature. According to Ms Beckett, Mr Thomas either personally or by an agent Vernon Taylor inappropriately approached Lucynne Cooper after she gave a statement to Mr Jones, Ms Beckett's former solicitor, with a view to having her change her story about what occurred at the Taree RSL club on the night of 28 July 1989. Ms Beckett is alleged on that occasion to have approached Mr Morris with a view to soliciting him to murder Mr Catt. Ms Cooper's statement to Mr Jones contradicted the versions of events that Mr Thomas knew would be given by Mr Morris himself as well as another witness. 38Mr Morgan was asked whether or not it was usual police procedure for an approach to be made to a witness by a member of the public, such as Mr Taylor, or for police to have such a person do so, as it were, on their behalf. 39It will be apparent that the first question is not a matter for expert evidence. I am unaware of any area of specialised knowledge directed to the behaviour of people such as Mr Taylor in the circumstances that are suggested. The question of whether or not Mr Thomas effectively encouraged Mr Taylor to approach Ms Cooper with a view to having him persuade her to change her story, or even simply to discover whether or not she would do so, remains an issue of fact in the proceedings from which the relevant inferences are matters for me rather than expert opinion evidence. 40The matters that arise for consideration of the eleventh matter concern the charge faced by Ms Beckett that she attempted to poison Mr Catt by the administration of lithium. Mr Catt was at the time the recipient of a prescription for that drug and was taking it for a diagnosed medical condition. In the course of investigating the matter, Mr Thomas failed immediately to inform Mr Catt that Ms Beckett was attempting to poison him in this way when it would arguably have been imperative for Mr Catt's personal safety that he be told. Ms Beckett will seek in these proceedings to argue that the strongest available inference is that Mr Thomas knew that the allegations were false, particularly for the reason that he was personally involved in the manufacture of false evidence to support them. 41In my opinion, the availability of that inference in the first place, or its strength in the second place, is a matter for me. The answer is hardly likely to be assisted by an examination of whether or not an hypothetical investigating police officer, in contrast to Mr Thomas in fact, would at the earliest available opportunity have told the apparent victim about the existence of a suspected plot to poison him. 42To the same effect, I do not consider that any questions that Mr Morgan has been asked about the chain of custody of the poisoned samples of milk can be of assistance. There was detailed argument at the trial about whether or not the evidence had been corrupted or was admissible. The somewhat questionable involvement of the redoubtable Mr Newell was closely surveyed at the time. The matter went to the jury. The issues in these proceedings concern whether or not Mr Thomas knew things that were never placed before the jury. They include Mr Thomas's alleged knowledge of or involvement in the curious tale about the adulterated milk. The issue of whether proper procedure was followed is of only secondary importance. Mr Morgan's opinions cannot assist in resolution of the real issues in dispute. 43I do not consider that Mr Morgan's expert opinions are relevant to any issue in these proceedings.
Conclusion 44With the exception of the matters concerning the application for and execution of search warrants in 1989, I do not consider that Mr Morgan's report deals with a relevant issue in these proceedings. I consider that the section of his report dealing with that issue should alone be admitted. I reject the tender of the balance of his report. 45Mr Maconachie QC for the defendant argued at length and in detail that Mr Morgan's report should be wholly rejected for reasons quite apart from relevance. He contended that Mr Morgan had not been shown to be an expert as strictly understood, in the sense that he was qualified to offer opinions on or about an area of specialised knowledge based on his training, study or experience: s 79 of the Evidence Act 1995. That was not a submission directed to suggesting that Mr Morgan was unqualified or that he had not undertaken significant training and study, or indeed that he was not very experienced. The material before me is to the contrary. The thrust of Mr Maconachie's concerns is that it is nevertheless not possible to identify an area of expert or specialised scientific endeavour that is capable of verification or empirical analysis or, in other words, that a framework or structure against which to measure or gauge the correctness of any of the opinions expressed by Mr Morgan has not been established. This is what was referred to by the High Court in Honeysett v The Queen [2014] HCA 29 at [42] as "the requirement of an independent means of validation before an opinion may be found to be based on 'specialised knowledge'." Mr Morgan's opinions, or those of anyone of a different view, were simply that: opinions. They are "necessarily subjective" and not amenable to "measurement and calculation": see Honeysett at [38]. 46With the exception of the one area to which I have referred, I consider that Mr Maconachie's submissions are correct. I suspect that the conduct and behaviour of police officers, much like that of doctors or advocates, is particularly subject to circumstances and influences that cannot reliably be measured. Mr Thomas's alleged failures and disregard for protocols and procedures are emerging in the course of this case. I am unable at this stage to detect the existence of an area of specialised knowledge that might be called the expected behaviour of a reasonable police officer, or even of a reasonable police officer conforming to all applicable police protocols and procedures. These are matters about which qualified people may express a wide range of respectable and well supported opinions, but I am not satisfied of the existence of any relevant specialty within the context of which it is possible for me to compare any competing opinions, or to make sense of the differences.
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Beckett
State of New South Wales