Thomas v State of New South Wales

Evidence Act 1995 s 59(2), s 63, s 69(1)(2), s 69(3)(a), s 135, Dictionary Part 2, Clause 4 (1)(e) Police Royal Commission Act 1994 s 5, s 17 Royal Commissions Act 1923 s 17(2) LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Pt 31 r 31.9 Law Reform (Vicarious Liability) Act s 6, s 8, Pt 4, s 9A, s 9B, Law Reform (Miscellaneous Provisions) Act 1946 s 5 Royal Commission (Police Service) Act 1994 s5

Bayeh v State Government of New South Wales [1999] NSWSC 1070 Brambles Construction Pty Limited and Helmers (1965) 114 CLR 213. CASES CITED : Duke v State of New South Wales & Five Ors (NSWSC, Barr J, unrep 17 October 2006) Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 484 Hartman v Commissioner of Police (1997) 91 A Crim R 141

PARTIES : Bruce Thomas State of New South Wales

COUNSEL : Mr Molomby SC & Ms K Nomchong - Plaintiff Mr Saidi & A Williams - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: The plaintiff seeks to tender extracts of the evidence given by Thomas Ross Eastwood to the Police Royal Commission on 13 March 1996. The relevant extracts of Mr Eastwood's evidence have been marked MFI #5 on the voir dire and appear at p 21615 of the transcript of the hearing of the Police Royal Commission.

2 Senior Counsel for the plaintiff submits that the relevant extracts of the transcript constitute a business record falling within the exception to the hearsay rule provided for in ss 69(1) and (2) of the Evidence Act 1995 (the EA) and/or constitute first-hand hearsay which is not excluded in a civil proceeding where the person who made the representation is not available to give evidence about a fact he intended to assert by the representation: s 63 of the EA.

3 It is not in contention that the activity of the Police Royal Commission is a 'business' as defined in clause 1(1)(d) of Part 2 of the Dictionary to the EA and the transcript of the hearing of the Police Royal Commission is a document within s 69(1) of the EA. 4 Counsel for the State, in opposition to the tender pursuant to s 69 of the EA, submits:

1. The exception to the hearsay rule provided by ss 69(1) and (2) of the EA does not make representations admissible which are otherwise inadmissible. 2. The exclusion to the hearsay rule provided for in s 69(3)(a) of the EA applies. 3. The evidence is prohibited by Rule 31.9 of the Uniform Civil Procedure Rules 2005.

4. Section 17(2) of the Royal Commissions Act 1923 applies and the evidence is not admissible either under s 63 or s 69 of the EA. 5 The State further argues that s 63 of the EA does not apply as the plaintiff has failed to establish that Mr Eastwood is unavailable to give evidence and, in any event, the notice requirements imposed by s 67 of the EA have not been complied with. Should the relevant parts of the transcript be found to be admissible, the State submits that the court should exercise the discretion conferred by s 135 of the EA and refuse to admit the evidence as its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to the State. 6 The first ground of objection centres upon the following passage in the evidence given by Mr Eastwood on 13 March 2006, (MFI #5 lines 43-52 at p 21615):

Q. Was there any question of you receiving any payment in connection with your inquiries?

A. Well to assist in convicting him for the assault." 7 Counsel for the State contends that the question, "Did you verbal Mr Thomas?" could not be asked in a court where the rules of evidence apply and the answer, "Yes", would not be admissible on the basis of being a conclusion. The witness would need to give the factual material to support the conclusion. Counsel further argues that the evidence is opinion evidence which is excluded by s 76 of the EA. The evidence which is inadmissible, it is contended, does not become admissible as it is contained in a business document.

8 The rules of evidence did not apply in the Police Royal Commission. The positive response provided by Mr Eastwood to the question was neither an expression of opinion nor of conclusion. Mr Eastwood, a former police officer, would readily have understood that he was being asked if he had fabricated an oral confession purported to have been made by the plaintiff. 9 The Macquarie Dictionary fourth edition provides as one of the meanings of the word 'verbal': "8. Colloquial an oral confession, usually made to police and recorded by them, and sometimes alleged to be fabricated."

10 Neither counsel's question using the colloquial equivalent to fabricate an oral confession nor Mr Eastwood's answer would necessarily have been rejected by a court. In any event, there is no merit in this ground of objection.

11 Mr Eastwood, by answering affirmatively, could only be understood to mean that he was representing that he had falsified an oral confession by the plaintiff. The representation was based on personal knowledge of the asserted fact. The term 'asserted fact' is defined in s 59(2) of the EA to mean a fact the existence of which is intended to be asserted in the representation: Odgers Uniform Evidence Law 7th Ed at [1.3.2860]

12 Sections 69(1) and (2) of the EA render admissible, subject to subsection (3), a previous representation contained in a document which is part of the records of the business if the representation was made by a person who had personal knowledge of the asserted fact. The representation made by Mr Eastwood to the Police Royal Commission is a previous representation as defined in the Dictionary to the EA, being made otherwise than in the course of the present proceedings. The relevant parts of the transcript, MFI #5, are previous representations which evade the hearsay rule under the provisions of s 69 unless s 69(3)(a) of the EA applies. 13 Counsel for the State contends that the Police Royal Commission was a proceeding for the purposes of s 69(3) and the giving of evidence by Mr Eastwood was a representation made in connection with an Australian proceeding. This submission may be swiftly despatched. Section 69(3)(a) of the EA is as follows: "3. Subsection (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 or overseas proceeding."

14 The Dictionary to the EA defines "Australian or overseas proceeding" to mean: "A proceeding (however described) in an Australian court or a foreign court." 15 The Police Royal Commission was a Commission of inquiry. It was not a proceeding in an Australian or foreign court and s 69(3)(a) of the EA does not apply. The third ground of objection is rejected.

16 The second ground of objection relies upon Pt 31 r 31.9 of the Uniform Civil Procedure Rules 2005 which provides: "(1) In any proceedings, evidence taken, or an affidavit filed, in other proceedings may not be used as evidence, saving all just exceptions and unless the court orders otherwise. (2) Leave may not be granted under subrule (1) except to allow the evidence taken, or affidavit filed in the other proceedings to be used in relation to the proof of particular facts."

17 The rule does not prohibit the reception into evidence of the extracts of the transcript otherwise admissible under s 69 of the EA nor is it necessary for the plaintiff to rely on the rule.

18 The fourth ground of objection is that s 17(2) of the Royal Commissions Act 1923 (the 1923 Act) applies and the relevant extracts of the evidence given by Mr Eastwood to the Police Royal Commission are not admissible at all in the present proceedings.

19 The Police Royal Commission was established by the Royal Commission (Police Service) Act 1994 (the Act). Under s 5, the Act is to be read as if it formed part of the 1923 Act and the provisions in the Act are in addition to and not in derogation of any provisions of the 1923 Act. 20 Section 17 of the 1923 Act provides as follows: "(1) A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege or on any other ground. (2) An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings. (3) Nothing in this section shall be deemed to render inadmissible: (a) any answer, document or other thing in proceedings for an offence against this Act, (b) any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1), (c) any book, document or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing. ………………….. " 21 It is common ground that Mr Eastwood's evidence to the Commission was given under objection. Mr Eastwood was advised by the Commissioner on 3 November 1995 that the evidence given before the Commission could not be used against him in "civil or criminal proceedings." (See exhibit #A on the voir dire, lines 25-35)

22 The present proceedings are brought by the plaintiff against the State of New South Wales and not against Mr Eastwood. The State is sued pursuant to s 5 of the Crown Proceedings Act 1988 and s 8 of the Law Reform (Vicarious Liability) Act 1983. The plaintiff sues the State for malicious prosecution claiming, shortly stated, that Detectives Hannay and Eastwood had no reasonable and probable cause to charge the plaintiff and maliciously invented the admissions of assaulting Ronald Gollan and of an intention to kill Gollan by the plaintiff of which they gave evidence in the course of the plaintiff's trial.

23 Section 8 of the Law Reform (Vicarious Liability) Act 1983 (the Vicarious Liability Act) provides as follows: " 8 Further vicarious liability of the Crown

(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the reason of a function, (including an independent function) where the performance or purported performance of the function:

(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or

(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown." 24 Section 6 provides:

"6 Police Officer For the purposes of this Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown." 25 Part 4 of the Vicarious Liability Act which makes provision for police tort claims includes s 9B which is as follows: "(1) A police tort claim is a claim for damages for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person.

(2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

(3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort. ………………." 26 In the present case, the State has admitted vicarious liability for the actions of Mr Hannay and Mr Eastwood and the police officers have not been joined by the plaintiff. Part 4 by virtue of s 9A extends to former police officers. Mr Eastwood resigned from the police service on 29 February 1996.

27 The State filed a cross-claim against Mr Eastwood on 2 June 2006 seeking indemnity and/or contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. The cross-claim has not been served.

28 Counsel for the State submits that if a judgment was to be entered on the merits of the case against the State based upon the alleged admissions made by Mr Eastwood to the Police Royal Commission that would have the consequential effect of his evidence before the Commission being used against him in civil proceedings. The reasoning behind this contention is that the State would be entitled to rely on that judgment, a cross claim being on foot to recover contribution from Mr Eastwood, a joint tortfeasor. It is in this way, the State argues, that the admission into evidence of the relevant extracts of the transcript would be "against" Mr Eastwood in contravention of s 17(2) of the 1923 Act. 29 My attention was drawn by counsel for the State to what was said in Hartman v Commissioner of Police 1997 91 A Crim R 141 per Cole JA with whom the other members of the court agreed at p 147: "The words 'in any civil or criminal proceedings' in s 17 are not to be narrowly construed but are to be read as expressing the legislature's intention that statements of evidence, or documents or oral evidence produced to or given to the Police Royal Commission are not available as evidence against the person providing or giving the statement, document or evidence in any future proceedings, howsoever, they are categorised. The expression 'any civil or criminal proceedings,' was intended to encompass the full category of possible future proceedings." 30 The cross-claim falls within, the State argues, the full category of possible future proceedings against Mr Eastwood. With that submission I agree. 31 It is implicit in the argument for the State that should the plaintiff be successful in the present proceedings, Mr Eastwood is a tort-feasor who "is or would, if sued, have been liable in respect of the same damage."

32 Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 relevantly provides: "1. Where damage is suffered by any person as a result of a tort (whether a crime or not):

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort feasor who is or would if sued, have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought." (emphasis added)

33 Senior Counsel for the plaintiff contends that Mr Eastwood, if sued, would not have been liable as the evidence given before the Police Royal Commission would not be admissible against him as he would be afforded the protection of s 17(2) of the 1923 Act whereas it is admissible against the State.

34 The State is placed by s 8 of the Vicarious Liability Act in the same position at common law as any other defendant said to be vicariously liable for the tort of another: Duke v State of New South Wales & Five Ors (NSWSC, Barr J, unrep 17 October 2006 at 7.) 35 It would seem on the one hand to be unfair that the extracts of the evidence given before the Police Royal Commission would be admissible against the State but would not be admissible against the party responsible for the damage. On the other hand, it would seem unfair that an action for malicious prosecution could be obstructed by the State initiating contribution proceedings against the tortious police officer. 36 Matters of fairness, however, are not of present concern. Contribution may be claimed only from a tortfeasor "who is or would, if sued, have been liable in respect of the same damage." That phrase in Brambles Construction Pty Limited v Helmers (1965) 114 CLR 213 per Barwick CJ at p 219 was read as meaning "if sued at any time."

37 The question is whether Mr Eastwood would have been held liable to the plaintiff if, at any time, the plaintiff had sued him for the damage. Underlying the question is the State's hypothesis of a judgment on the merits based upon the alleged admissions by Mr Eastwood to the Police Royal Commission. The question must be answered in the negative.

38 There would never be a point of time at which Mr Eastwood would be liable to the plaintiff based upon his evidence to the Commission if he objected to its admissibility. He remains protected by s 17(2) of the 1923 Act. For this reason, the argument by the State that s 17(2) prohibits the tender of the extract of the relevant evidence before the Police Royal Commission must fail.

39 The argument fails for another reason Mr Eastwood, as a witness in the present proceedings, could waive the protection afforded by s 17(2). As was observed in Bayeh v State Government of New South Wales, [1999] NSWSC 1070 per Ireland J [at 43]: "……the plaintiff, having taken objection to giving the relevant evidence before both Commissions was entitled to claim privilege against self incrimination and object to the evidence being placed before the Board. Nevertheless, it is of the essence of a privilege that it may be waived by the person who enjoys it; Cross on Evidence, 4th Aust Ed 667. Waiver of privilege may be express or implied; it may be deliberate or inadvertent; Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 484 (CA)."

40 The privilege of protection is personal to the witness who gave evidence to the Commission. The privilege, in my opinion, cannot be claimed by the State under the guise of protection of Mr Eastwood. 41 The evidence is not admissible under s 63 of the EA. No steps have been taken by the plaintiff after 10 December 2004 to have Mr Eastwood attend court. I am not satisfied that the plaintiff has taken all reasonable steps to find Mr Eastwood or to secure his attendance without success: Clause 4 (1) (e) of Part 2 of the Dictionary to the EA. I do not find that Mr Eastwood is not available to give evidence.

42 Counsel for the State submits that the relevant extracts of Mr Eastwood's evidence should be excluded by the exercise of the discretion conferred by s 135 of the EA. The State argues that the unfair prejudice arises from the inability to cross-examine Mr Eastwood. 43 Section 135 of the EA is as follows: "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." 44 The onus is upon the State to establish upon the probabilities that the probative value of the relevant extracts of Mr Eastwood's evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the State.

45 The Dictionary to the EA defines the term 'probative value' of evidence to mean: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

46 A fact in issue of fundamental importance in the present proceedings is the asserted fabrication by Mr Eastwood and Mr Hannay of admissions they said were made by the plaintiff on 26 September 1986. The probative value of the representation by Mr Eastwood that he had falsified an oral confession by the plaintiff could, to a significant extent, rationally affect the assessment of the probability that he had fabricated his evidence of admissions at the plaintiff's trial. 47 Although the representations made by Mr Eastwood lack specificity, the relevant extracts, if admitted, are not to be considered in isolation but in combination with other relevant evidence. The evidence is important and significantly probative.

48 A transcript of Mr Eastwood's evidence given in unrelated proceedings in the Local Court and the judgment of Pierce LCM have been tendered on the voir dire: exhibits 6 and 7. The State contends that the cross-examination of Mr Eastwood in those proceedings exposed him to be an untruthful witness, a self-admitted perjurer who was pressured by the Royal Commission investigators and the inability to similarly cross-examine him denies to the State the opportunity to test the veracity of the representations to the Police Royal Commission.

49 Whilst there has been, to my mind, some over-emphasis of the impact of the cross-examination in the Local Court, Mr Eastwood's evidence reflected adversely upon his credibility. The inability to challenge the veracity of Mr Eastwood's representations to the Police Royal Commission places the State at a disadvantage and causes some prejudice. The danger of unfair prejudice is reduced by the ability of this court to take into account the absence of challenge by cross-examination when determining the weight to be given to the representations.

50 The disadvantage asserted by the State ceases to exist if Mr Eastwood is called. Section 135 of the EA refers to the danger that the evidence might be "unfairly prejudicial" to a party. Where the party asserting the prejudice could eliminate it by taking reasonable steps and chooses not to do so, the prejudice, in my opinion, could not be described as unfair.

51 It is not open to the State to merely rely on the attempts by the plaintiff to find Mr Eastwood. No evidence has been adduced as to the efforts made by the State to ascertain the whereabouts of the person the State wishes to cross-examine. This does not represent a reversal of the onus of proof as counsel for the State suggests, but a consideration of fairness. In any event, the State bears the onus of establishing the danger of unfair prejudice. The State is well placed, it seems, to take reasonable steps to find Mr Eastwood. To echo the submission made on behalf of the State, it is not a difficult exercise to ring up a witness protection authority to make the necessary inquiries.

52 Neither s 17(2) of the 1923 Act, nor the unserved cross-claim, prohibits the State ascertaining the whereabouts of Mr Eastwood and calling him in the State's case. A certificate under s 128 of the EA could be given if required to the witness. I indicate to the State I am prepared to grant leave to the State to issue a subpoena requiring Mr Eastwood to give evidence in the State's own case. I am also prepared to entertain a submission that the witness be permitted to be examined by leading questions.

53 In conclusion, carrying out the weighing exercise, I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the State: s 135(a) of the EA, nor is it misleading or confusing, nor does it cause or result in undue waste of time: Sections 135(b) and (c). 54 Pages 21615 and 21616 of the transcript should be tendered for completeness. **********

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