Beckett v State of New South Wales

Consideration 17It is not in issue that Mr Thomas was central to the events that give rise to these proceedings and that he was a potentially significant witness to the events that have occurred. Because of the way in which Ms Beckett puts her case, proof of his subjective state of mind is critical to Ms Beckett's attempts to establish that he improperly acted or conspired falsely, corruptly and dishonestly to fabricate or construct the case against her. He was not, on Ms Beckett's case, a prosecutor who was honestly and professionally indifferent to the truth or otherwise of the facts that came to his attention as the prosecutor, upon the basis of which he formulated and prosecuted the charges that those facts were alleged to support. Ms Beckett's case that there was an absence of reasonable and probable cause for Mr Thomas to believe that she was guilty of the charges is founded on the proposition that he not merely had reasonable grounds to suspect that she was not guilty of any of the charges but that, by reason of his active involvement in constructing the evidence against her, he actually knew she was not. Ms Beckett's case that Mr Thomas acted maliciously in prosecuting her is based upon a similar analysis. 18To that extent at least, Ms Beckett maintains that the opportunity to cross-examine Mr Thomas was a critical event in the establishment of her case. The material that was before Mr Thomas as the prosecutor is voluminous. It presently occupies six volumes of what has come in these proceedings to be described as the "Crown Court Book". There may be more documents forming part of what was unarguably before Mr Thomas as the prosecutor before this case is over. By definition, however, this material does not include those matters that Ms Beckett says were known to Mr Thomas but which, for the most obvious of reasons, were never recorded by him or spoken about with others. These are matters that remained secreted within Mr Thomas' memory, but which Ms Beckett was no doubt hopeful of exposing. It is equally plain that the anticipated cross-examination of Mr Thomas was the principal available means, although admittedly not the only means, of doing so. 19Ms Beckett formulates her resistance to the State's attempt to adduce the evidence in question in two distinct ways. The first is based upon an analysis of the background material to which I have referred, in aid of a contention that the State ought, as a matter of general discretion, to be prevented from adducing the evidence because of the way in which it has conducted itself as a litigant in these proceedings. Briefly put, the State was placed on notice from an early date by Ms Beckett, even if it ought not otherwise to have appreciated the fact, that Mr Thomas was ill and that there was at least some prospect that he may be unavailable through death or anterior incapacity to attend court to give evidence. This notice was given as early as 18 July 2014. Ms Beckett maintains that the State, especially as a model litigant, and especially having regard to Mr Thomas' pivotal role in the proceedings, ought to have arranged for his evidence to be taken while he was still able to provide it. Ms Beckett maintains in this respect that the State was under an obligation to ensure that both she and the Court were kept informed of Mr Thomas' health and progress in order that steps could be taken to secure his evidence if his condition deteriorated. 20The burden of Ms Beckett's contentions in this respect is that Mr Thomas' evidence was always likely to be critical, and that the State cannot in such circumstances be permitted to rely upon his evidence when he is dead if it did not take reasonable steps to adduce the same evidence while he was alive. Although not in terms formulated in this way, Ms Beckett's contentions are really based upon the proposition that it would be unfair for the State to have the benefit of Mr Thomas' evidence without being subjected to the potential corresponding burden of his cross-examination. 21It seems clear that Mr Thomas' condition deteriorated rapidly from being apparently normal, or at least not apparently incapacitating or imminently life threatening when seen by Mr Maconachie and his legal team in late July, to being moribund a month later. Ms Beckett maintains that she should have been told of this whereas the State contends that it did not have any reason to suspect it. My present difficulty is that there is no sufficient basis for concluding that the State had any real basis for anticipating that Mr Thomas would die when he did. The evidence certainly supports the fact that his condition deteriorated very rapidly and that his death was to a certain extent unexpected when it occurred even if his death was rapidly approaching. It is important to observe that there is no explicit prediction of Mr Thomas' likely date of death in the expert medical opinion to which I have referred. 22The burden of Ms Beckett's complaint is that the State improperly and inexcusably sat on its hands when it knew, or ought to have known, that a critical witness was either in extremis or about to die, thus at least potentially depriving her of a significant forensic advantage. Ms Beckett contends that the State should not as a matter of discretion be permitted to take advantage of such conduct in the circumstances. In the events that have occurred it is unnecessary for me to express a view about whether any such basis for opposing the evidence exists as a matter of principle. That is because I cannot be satisfied as a fact that the State was sufficiently armed with any reasonable expectation that Mr Thomas was likely to die before giving his evidence, so the underpinning factual basis for a consideration of the asserted principle is missing. I also express no view about whether or not any such principle as the one relied upon exists at all or can be accommodated to a case such as this, where even for a model litigant forensic choices about when or whether to call a witness remain important considerations in adversarial litigation. 23Secondly, Ms Beckett contends that the evidence that the State proposes to adduce should be rejected at this stage upon the basis of s 135(a) of the Act. Ms Beckett submits that I should refuse to admit the two volumes of evidence of Mr Thomas' representations upon the basis that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to her. 24The thrust of that contention resides once again in a comparison of the importance of Mr Thomas as a witness in this case on the one hand, and the arguable significance to her case of being unable to cross-examine him upon the evidence if admitted on the other hand. I was referred to the dissenting opinion of Mason P in Ordukaya v Hicks [2000] NSWCA 180. His Honour expressed the view that the concept of unfair prejudice under s135 (a) is not limited to misuse of evidence by the tribunal of fact and may arise from procedural considerations. Thus an opposing party may be significantly prejudiced by hearsay evidence if that party is unable to cross-examine on a crucial issue in the litigation. His Honour said this at [6]: "[6] In my view this danger identifies the core notion of 'unfair prejudice' and the purpose of the discretion to exclude evidence on that basis. In R v BD (1997) 94 A Crim R 131 at 139, Hunt CJ at CL referred to evidence as unfairly prejudicial 'if there is a real risk that the evidence will be misused by the jury in some unfair way'. Citing this, the learned author of Odgers, Uniform Evidence Law 3rd ed (1998) states at p443: Plainly, it is likely that this 'danger' will usually only have significance in a jury trial. Where the trial is by a judge without a jury, it will be an unusual judge or magistrate who is prepared to concede that a danger exists that he or she might be 'unfairly prejudiced' by evidence. On the other hand the provision is not limited to misuse of the evidence by the tribunal of fact. Unfair prejudice may arise from procedural considerations. Thus an opposing party may be significantly prejudiced by hearsay evidence if unable to cross-examine on a crucial issue in the litigation. Alternatively, the opposing party may be unfairly prejudiced by evidence if prevented from properly challenging its reliability. I agree. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1999] FCA 1269." 25I was not specifically referred to the majority decision of Sheller and Meagher JJA. Their Honours were of the opinion that s 135(a) requires, not the prejudice, but unfair prejudice, to be weighed against the probative value of the evidence. Admission of hearsay evidence under s 64 of the Act necessarily carries with it prejudice to the opposing party as by definition the maker of the statement cannot be cross-examined. However, in their Honours' view, that danger did not make the prejudice unfair to the point of outweighing material of high probative value such as the statutory declaration in that case. 26To the extent that it is necessary to do so, I consider that this case is clearly distinguishable on its facts. The evidence sought to be adduced consists of literally hundreds and hundreds of pages. The representations upon which the State proposes to rely have not been specifically identified and are not easily identifiable within the wealth of material concerned. The evidence is not confined to a single statutory declaration on limited issues or confined topics but appears to extend over an extremely wide range of subject matter. Nor is the material confined to a limited timeframe but extends from as early as July 1989 prior to Ms Beckett's arrest to as late as the Davidson Inquiry in 2003. I have also not been informed of precisely how the material is said to be relevant to the State's case of rebutting Ms Beckett's evidence in support of proof by her of the absence of reasonable and probable cause or malice. It also seems plain that, to the extent that the material post-dates Ms Beckett's conviction, it could not have been and cannot be considered to be material that was relevantly before Mr Thomas in his capacity as the prosecutor at the relevant time. 27In my opinion, the most significant factor in this context is the critical and central role played by Mr Thomas. He lies both at the centre of Ms Beckett's case and at the centre of the State's response to it. Cross-examination of Mr Thomas is therefore not to be so easily brushed aside as a merely or largely formal procedural consideration. What unrecorded matters might have been residing in the mind and conscience of Mr Thomas are patently and by definition now no longer capable of being revealed. Ms Beckett could not ever have had the slightest chance to explore it if not through cross-examining Mr Thomas in open court before me. Ms Beckett has absolutely no chance of doing so now after his death. It is in that context that the true extent of the prejudice associated with admitting his documents for all purposes has to be considered and assessed. 28In my opinion, the admission of the evidence of Mr Thomas' representations that the State wishes to adduce would create a fundamental and insurmountable prejudice to Ms Beckett. The probative value of that evidence is both questionable and limited. It contains and exudes a largely if not wholly unilateral view of events from a witness whose motives are fundamentally in issue in these proceedings and intimately concerned with the issues in this case. Since his death there is no remaining scope for either party or me to gauge this evidence with the assistance of its author. Much of it is, in any event, available for consideration by me as material that was before the prosecutor. 29The probative value of this evidence is in my opinion overwhelmingly outweighed by the unfair prejudice that would attend its reception. 30I note in passing that I have not been prepared to conclude that the State is precluded from attempting to adduce this evidence by its conduct in failing to advance the evidence of Mr Thomas in the face of his likely early demise. I do not however consider that an application to adduce his evidence post mortem pursuant to s 63(2) was ever going to be entirely uncontroversial, as my conclusions about it have demonstrated. In that sense it was always within the power of the State to seek to call or interpose Mr Thomas when any possibility existed that his representations might not be received after his death. Each of Ms Beckett and the State had an interest in calling Mr Thomas during his lifetime and the advantageous litigious consequences of his death cannot all be enjoyed by the State whilst the disadvantageous ones are all borne by Ms Beckett. 31Ms Beckett also argued that s 63 did not apply in the circumstances of this case because it was inaccurate to describe Mr Thomas relevantly as "not available" within the meaning of that expression in s 63(1). The Dictionary to the Act provides that "a person is taken not to be available to give evidence about a fact if... the person is dead." Ms Beckett described the State's reliance on s 63(1) as "misplaced". She contended that "on its proper construction", Part 2, clause 4(1)(a) of the Dictionary "does not apply to the circumstances" of Mr Thomas. Ms Beckett submitted that when the provision is considered in its context and in cognisance of its purpose, it is clear that it is not intended to include a witness who was alive earlier in the proceedings but has died before he or she was called to give evidence. Mr Thomas was such a person. 32Ms Beckett made the following submission: "53. Looking at the clause as a whole in this way, its purpose is readily apparent. Where the attendance of a witness in court may be procured by the parties, the purpose of the section is to require a party to take reasonable steps to do so before it may rely on the witness' unavailability to adduce hearsay evidence. In circumstances where no action of the parties could cause the witness to give evidence, the parties do not have to show that reasonable steps were taken." 33No authority is cited for this contention. I do not find that surprising. This argument is no more than a reformulation of the argument that the State had an obligation to call Mr Thomas during his lifetime if they expected or anticipated that he might die beforehand. The argument asserts in effect that a party cannot rely upon the defined unavailability of a witness if they have caused or contributed, by action or otherwise, to the events that led to the unavailability. 34I do not think that there is any basis upon which this contention can succeed. The definition of "not available" is not expressly or impliedly conditioned by reference to when the witness becomes unavailable or by reference to any role played by the party seeking to adduce the evidence in what caused it. The wholly unexpected demise of a witness cannot in this context easily be distinguished from an anticipated death. The date when a decision to call a witness is made cannot be the determinant of whether the witness is relevantly not available when he or she dies. Ms Beckett's contentions are fundamentally underpinned by the need to characterise the conduct of the State in this case as disentitling it to rely upon the provision. There is nothing in the provision itself that suggests that this is a legitimate approach. Taking account of the purpose of the provision does not, to my mind, helpfully inform the answer, where unavailability caused by death is the unadorned issue that triggers the entitlement to adduce the evidence in this way.

Conclusion 35In these circumstances I consider that the State's application to adduce the evidence of the previous representations of Mr Thomas in reliance upon s 63(2) of the Evidence Act should be dismissed. I will mark the two folders of documents referred to in the s 67 notice for identification if required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2014