Nye v State of New South Wales & ors

Supreme Court of NSW|2002-09-27|Before: O'Keefe J, Mr P, Jordan CJ, Kitto J

CITATION : Nye v State of New South Wales & ors [2002] NSWSC 1268 revised - 10/02/2003 FILE NUMBER(S) : SC 21458/96 HEARING DATE(S) : 26/09/02 JUDGMENT DATE : 27 September 2002

Garry Raymond Nye State of New South Wales Wayne Popplewell PARTIES : Wayne Desmond Gordon Peter James Hawley David John Barnett Director of Public Prosecutions JUDGMENT OF : O'Keefe J

COUNSEL : Plaintiff: Mr B Donovan QC with Mr D Baran and Mr C Thompson Defendant: Mr I Temby QC with Mr P Lakatos SOLICITORS : Plaintiff: Miss E Faccin - Carol & O'Dea (Sydney) Defendant: Ms G Fuller - Crown Solicitor's Office (Sydney) CATCHWORDS : Malicious prosecution - Malice - Evidence - Relevance - Common law concept of relevance expanded by Evidence Act 1995 - Exclusion of representations made in connection with an investigation relating or leading to a criminal prosecution - Business records - Royal Commission engaged in a business - Evidence adduced at Royal Commission is not a representation made in connection with an investigation relating or leading to a criminal proceeding - Royal Commissioner engaged in a business - Words and phrases - "in connection with", "relating to", "leading to". Evidence Act 1995: ss 55(1), 56, 69(1), (2), (3), 135, 136, 137, dictionary Part 1 and Part 2, cl 1(1)(d) LEGISLATION CITED : Royal Commissions Act 1923: s 5 Royal Commission (Police Service) Act 1994 Evidence Act 1898: ss 14CD, 14CF, 14CG Brown v Hawkes (1891) 2 QB 718 Brain v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 36 Corea v Peiris (1909) AC 549 Trowbridge v Hardy (1955) 94 CLR 147 CASES CITED : Trustees Executors and Agency Co Ltd v Reilly (1941) VLR 110 Powers v Maher (1959) 103 CLR 478 Workers' Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 Technical Products Pty Ltd v State Government Insurance Office (Q) (1989) 167 CLR 45 Australian National Railways Commission v Collector of Customs (SA) (1985) 69 ALR 367 Collector of Customs v Pozzolanic Enterprises Limited (1993) 115 ALR 1 DECISION : Parts of transcripts of evidence given to Royal Commission into Police Service admitted.

7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SYDNEY LIST

JUDGMENT 1 Garry Raymond Nye (the plaintiff) has sued the State of New South Wales, Wayne Popplewell, Wayne Desmond Gordon, Peter James Hawley, David John Barnett and the Director of Public Prosecutions for malicious prosecution. The plaintiff was arrested on 24 July 1991 and charged, inter alia, with having murdered Roy Thurgar at Randwick on 20 May 1991. He was acquitted of this charge in November 1992. 2 The plaintiff has claimed damages for malicious prosecution on the basis that the malice in the case can be proved by showing that the circumstances in which the prosecution was brought and the evidence said to support it were such that the prosecution could only be accounted for by imputing some wrong or indirect motive to the prosecutor (Brown v Hawkes (1891) 2 QB 718) and that absence of reasonable and probable cause can be proved by showing that the information possessed by the prosecutors and reasonably believed by such persons to be true, was not such as would justify a man of ordinary prudence and caution in believing the plaintiff was probably guilty (Brain v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 36 at 41 per Jordan CJ; Corea v Peiris (1909) AC 549 at 555 per Lord Atkinson. This mode of proof was accepted as appropriate in Trobridge v Hardy (1955) 94 CLR 147 and was described by Kitto J as "the indirect route" that is proving that the defendant's conduct is not to be explained by the existence of a right motive. In order to effect such proof it is sufficient if : "E vidence which tells against the probability that a right motive was the sole or predominant cause of the conduct goes to provide a foundation on which the jury may reason, through the presumption that there must be some explanation of what the defendant did, to the conclusion that he must have been actuated by an inadmissible motive of some kind or other." (at 163 ) 3 An example advanced by Kitto J was a finding "that facts were known to the prosecutor such that a reasonable man who knew them would not believe in the guilt of the accused" may be a foundation for a conclusion that it was improbable that the prosecutor in fact believed in the guilt of the person charged (at 163-164). 4 The investigation of the murder of Roy Thurgar was undertaken by a large team of police, including the four named defendants. The evidence reveals that Detective Superintendent Harding headed the investigation and that Detective Sergeant Gordon was at least one of the police in immediate charge of that part of the investigation that concerned the plaintiff. The claim made by the plaintiff is that the facts known to the police, relevantly including Detective Sergeant Gordon (Gordon), were such that no reasonable man would have believed in the guilt of the plaintiff. 5 In order to prove his case the plaintiff has sought to put before the court all matters that were known to the prosecutors. This is said to include material which showed that the police, including Gordon, did not believe, or did not have a reasonable basis to believe, in the truth of the claims made by a police informer, Danny Shakespeare, whose evidence inculpating the plaintiff was in essence the totality of the case against the plaintiff. 6 Senior counsel for the plaintiff has tendered certain parts of a transcript of evidence given by Detective Superintendent Brian Harding (Harding) and Detective Inspector J Wilson (Wilson) before the Royal Commission conducted by Wood J into the New South Wales Police Service in 1995/1996. In the course of the Royal Commission, Harding was asked questions on 27 June 1996 concerning his state of knowledge about the credibility, or lack thereof, of the police informer Shakespeare and in the course of his answers is said to have agreed that:

(a) as at early 1991 he was aware that Shakespeare was untruthful and that material he supplied to police in respect of the supposed criminal activities of other persons was unreliable;

(b) he had communicated this fact to Gordon when Gordon was still interviewing Shakespeare at Port Kembla in May 1991; and

(c) he had informed Gordon that, in effect, anything said by Shakespeare had to be fully corroborated. 7 Senior counsel for the defendant has objected to the tender which has been pressed on the basis that the relevant parts of the transcript constitute a business record falling within the exclusion to the hearsay rule provided for in s.69(1) and (2) of the Evidence Act 1995 and are not excluded by the provisions of s.69(3) of that Act. 8 The Evidence Act 1995 (the Act) provides that evidence that is relevant in a proceeding is that evidence which "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings." (s.55(1)). Section 69(1) excludes evidence of a previous representation to prove the existence of a fact asserted in the representation. This rule of exclusion is subject to a number of exceptions, one of which is that contained in s.69(2). The exception so created is, however, itself the subject of an exception that operates to exclude certain hearsay evidence. Section 69(3) provides that: "Sub-section (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding." 9 Criminal proceeding is defined in Part 1 of the dictionary to the Act to mean "a prosecution for an offence" and to include a proceeding for committal and a proceeding relating to bail. Business is widely defined in Part 2 of the dictionary. It includes "an activity engaged in or carried on by a person or body holding office or exercising power under … an Australian law … being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity)." (Cl 1(1)(d)). Undoubtedly, the Royal Commission was such a body and the Royal Commissioner a person of the kind contemplated by the definition. That being so, the transcript taken at the hearings of the Royal Commission falls within the definition of records of a business within the meaning of s.69(1) of the Act. Furthermore, the requirements of s.69(2), namely that the person making the representation had or might reasonably have been supposed to have had personal knowledge of the asserted fact are satisfied. 10 In the ultimate it was not argued that the Royal Commission and the Royal Commissioner were not engaged in a business within the meaning of the Act nor was it argued that the record did not fall within s.69(1). Senior counsel for the defendants put his objection on one basis and one basis only, namely that the exclusion from the exception to the hearsay rule provided for in s.69(3)(b) applied. This, so the argument ran, was because the representations included in the transcript were made in connection with an investigation relating or leading to a criminal proceeding. This construction of s.69(3)(b) depends on the meaning and ambit to be given to the words "in connection with". Senior counsel argued that the representations were concerned with an investigation which had been conducted into the murder of Roy Thurgar in 1991 and that such investigation led to the prosecution of the plaintiff, amongst others, for such murder. The proceedings for murder (being the committal and trial) were argued to be the criminal proceeding contemplated by s.69(3)(b). 11 Senior counsel for the plaintiff, however, contended that the proposition advanced on behalf of the defendants conferred on the phrases "in connection with" and "relating to" a breadth that the section did not envisage. His contention was that the approach adopted on behalf of the defendants converted the connective phrases in question into the equivalent of "about", a word of wider connective significance and broader ambit than the phrases used in the section. 12 There are thus two conflicting constructions contended for: one (the defendant's) resulting in a wider ambit of exclusion of evidence; the other (the plaintiff's) resulting in an ambit of exclusion that is narrower, tending to favour the admission of more evidence. 13 Connective phrases such as "in connection with" and "relating to" and cognate phrases are common in legislation. The phrase "relating to" is of wide significance and the cases that consider it and cognate phrases such as "in relation to", "related to", and "with respect to" tend to equate them (Pearce and Geddes, Statutory Interpretation in Australia, 5th Ed. Paragraph 12.7). However, the very broad ambit of these connective phrases referred to in such cases as Trustees Executors and Agency Co Ltd v Reilly (1941) VLR 110 at 111 per Mann CJ and Powers v Maher (1959) 103 CLR 478 at 484 - 485, namely that they were words "having 'the widest possible meaning of any expression intended to convey some connection or relation between two subject matters'" does not accord with later authority. Thus, in Workers Compensation Board of Queensland v Technical Products Pty Limited (1988) 165 CLR 642 Wilson and Gaudron JJ, expressed the view that such a description of connective significance put it "perhaps somewhat extravagantly" (at 646) and adopted the view that the meaning to be ascribed to such phrases "depends very much on the context" (at 647). Deane, Dawson and Toohey JJ, described the earlier statements as to the ambit of connective significance as "going somewhat too far" (at 653), adding that: "the phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends." (at 653-654) 14 In Technical Products Pty Limited v State Government Insurance Office (Q) (1989) 167 CLR 45, the High Court again considered the phrase "in respect of " as part of a composite phrase included in a statute that required the owner of a motor vehicle to maintain insurance against all sums for which such person may become "legally liable by way of damages in respect of such motor vehicle for accidental bodily injury … where such injury is caused by, through, or in connection with such motor vehicle." That case arose out of an injury sustained by a workman when he fell from a pallet supported by the tines of a forklift vehicle while he was loading goods into a container which was on the back of a motor vehicle. Brennan, Dean and Gaudron JJ said that: "the words 'in respect of' have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear. The nexus between legal liability and motor vehicle which their use introduces … is a broad one which is not susceptible of precise definition. That nexus will not, however, exist unless there be some discernable and rational link between the basis of legal liability and the particular motor vehicle." (at 47 )

Applying this approach to the relevant connective phrase and rejecting that the employer was liable they said: " There is nothing in the present case that would justify a conclusion that the trailer and container had any involvement in the employee's accident beyond their passive presence as the receptacle into which the bags were loaded." (at 49) 15 Dawson J, who was part of the majority (Toohey J dissenting), said: "It is true that the words 'in respect of' may have a wide meaning but it is not correct to say that they extend to any relationship, however tenuous … the words take their colour from the context in which they are found. … the words 'in respect of' require some material connection between the two matters referred to." (at 51) 16 The phrase "in connection with" and similar phrases are also of wide ambit. However, whilst such phrases are wide in their ambit they are also imprecise. Australian National Railways Commission v Collector of Customs (SA) (1985) 69 ALR 367. It has been said to be: "…c apable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote."( Collector of Customs v Pozzolanic Enterprises Limited (1993) 115 ALR 1 at 10)

Where the connective phrase fits in this wide spectrum will, as in the case of its counterpart "relating to", depend on the context in which it is used and this in turn will involve a value judgment by the court. 17 The Evidence Act 1995 did much more than codify the pre-existing law. It introduced significant reforms to the law of evidence, facilitated proof and made less onerous and technical the task of a party who seeks to adduce evidence. The policy embodied in the Act is to expand the ambit of admissible evidence. Thus, the form of the relevance rule in Pt 3(1) is expansive. The dominant approach is that if evidence is relevant it should, subject to express exceptions, be admitted (s.56). The concept of relevance is broadly stated (s.55). The exceptions to the hearsay rule are also widely stated and s.69 itself is significantly more favourable to the admission of evidence than its predecessor in the Part IIC of the Evidence Act 1898 (ss.14CD to 14CV, especially ss 14CF and 14CG). In these circumstances, I am of opinion that the approach to the construction of s.69(3) ought not unduly to curtail the admission of evidence that could rationally affect the assessment of the probability of the existence of a fact in issue. Such an approach does not, in my opinion, bring about any unfairness to a party because of the wide discretions conferred by the Act to exclude evidence that is otherwise relevant and hence probative. Sections 135 and 136 are examples of such discretions in both civil and criminal cases, whilst s.137 is an example relating to criminal proceedings. Such a policy supports a construction of the exception to the exclusion to the hearsay rule in s 69(3)(b) which favours a wide ambit of admission of evidence. 18 The evidence which is sought to be adduced on behalf of the plaintiff is that given in the course of the proceedings of a Royal Commission. The Royal Commission was not investigating any crime. Its function was to inquire into and report on matters relating to the New South Wales Police Service. Having conducted the inquiry the Royal Commissioner was required to report his findings and make recommendations in accordance with the requirements of the Royal Commission (Police Service) Act 1994. That Act, which was specific to the Police Royal Commission, was required to be read as if it formed part of the Royal Commissions Act 1923 (s 5). Neither the Royal Commission as a body nor the Commissioner who constituted the body had power to institute criminal proceedings about the matters the subject of the inquiry. At most, the Royal Commissioner could make a recommendation that consideration be given to the prosecution of certain individuals. Thus the inquiry could not in any real sense of the word lead to a criminal proceeding. 19 The construction contended for on behalf of the defendants would have the effect of broadening the ambit of the exception to the exclusion to the hearsay rule and thus to narrow the ambit of the exclusion created by s.69. In my opinion, this would be contrary to the general policy of the Act and should not be adopted unless the clear words of the statute so require. I do not think they do. 20 Evidence taken in the course of the Royal Commission was not part of an investigation as that term is used in s 69(3)(b) of the Act. To suggest that the questions asked at the Royal Commission about the Thurgar murder investigation were "in connection with" an investigation does not, in my opinion, accord with the purpose of s.69(3)(b). They were not "in connection with" an investigation as that connective phrase is to be understood in s 69(3)(b). Furthermore, the exclusion dealt with in that section is concerned with "an investigation relating or leading to a criminal proceeding". In the Royal Commission, the evidence adduced (representations) related to a police investigation which was long since complete. Whilst that investigation had led to a prosecution, the evidence given at the Royal Commission was not "leading to" a criminal proceeding. Nor was it "relating to" a criminal proceeding as that phrase is to be understood in s 69(3)(b). The relevant criminal proceeding was the prosecution of the plaintiff, amongst others, for the murder of Thurgar. The relevant investigation was that conducted by the police into the murder of Thurgar. Written statements taken from witnesses (documents), which recorded representations made by them in the course of the investigation into the murder of Thurgar in 1991, would fall within the exclusion created by s 69(3)(b). The representations made in such documents were made in connection with an investigation relating to a criminal proceeding and led to a criminal proceeding. The evidence taken at the Royal Commission is in a fundamentally different situation. In my opinion, it does not fall within the ambit of s 69(3)(b), properly construed. 21 In these circumstances, and subject to any considerations that might arise under other sections of the Act, for example ss.76, 91, 135, 136 and perhaps others, I propose to admit parts of the transcripts of the evidence given to the Royal Commission by Detective Superintendent Harding and Detective Inspector Wilson.

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