Citation: Nye v State of New South Wales & ors [2002] NSWSC 1272
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 September 2002
Judge(s): O'Keefe J
Background
The plaintiff brought a malicious prosecution claim against the State of New South Wales, the Director of Public Prosecutions, and several named police officers. The claim arose from the investigation and prosecution of the plaintiff in connection with the murder of Roy Thurgar on 20 May 1991, and multiple arrests on 24 July 1991.
During trial, a witness (referred to only as "JS" due to a suppression order) gave evidence on the voir dire (a preliminary hearing before the judge alone to assess admissibility). Her evidence concerned interactions she had with members of the police investigative team, including two named defendant officers, Wayne Gordon and Wayne Popplewell.
The defendants applied to have JS's evidence excluded from the trial, arguing it had not been opened on by the plaintiff's counsel, had not been particularised, and was directed at officers other than the named defendants. The court was asked to rule on whether the evidence should be admitted.
Legal Issues
- Whether JS's evidence was relevant to the issue of malice in the malicious prosecution claim, within the meaning of section 55 of the Evidence Act 1995
- Whether evidence relating to conduct not specifically opened on or particularised could nonetheless be admitted
- Whether the admission of the evidence would cause prejudice to the defendants that outweighed the benefit to the plaintiff
- Whether evidence relating to members of the police investigative team who were not named personal defendants could be conditionally admitted under section 57 of the Evidence Act 1995
Decision
O'Keefe J found that JS's evidence was relevant within the meaning of section 55 of the Evidence Act 1995. Her account included repeated statements to officers Gordon and Popplewell that the principal Crown witness, Danny Shakespeare, was lying, and alleged that those officers discouraged her from repeating those claims. If accepted, this evidence could bear on whether the prosecutors were wilfully blind to exculpatory material, a concept the High Court recognised as relevant to malice in Trobridge v Hardy (1955-1956) 94 CLR 147.
JS also alleged that either Gordon or Popplewell offered her inducements, including a car, a house, money, and a new life, to remain with Shakespeare until he gave evidence. His Honour held that, if accepted, this evidence could be relevant to an inference that the defendants were motivated by an improper purpose to "fit up the plaintiff," which goes directly to the element of malice.
Although the evidence had not been opened on, the plaintiff's senior counsel explained that JS had not been located until after the opening was completed. His Honour accepted this explanation and distinguished JS's evidence from other evidence excluded in an earlier ruling on 2 September 2002. That earlier ruling had excluded certain oral statements on the basis of transience and the passage of time creating real prejudice to the defendants; by contrast, JS's evidence was specific and concerned the two named personal defendants, so no comparable prejudice arose.
His Honour also observed that the particulars requested by the defendants were limited in scope and did not specifically address acts or events relating to malice. The court concluded that the interests of justice, and the objective of the Evidence Act 1995 to allow full presentation of evidence in civil matters, favoured admission. Evidence relating to police team members other than the named defendants was admitted conditionally, subject to further evidence and argument as contemplated by section 57.
Orders Made
- JS's evidence admitted unconditionally insofar as it related to the named personal defendants Gordon and Popplewell
- JS's evidence relating to other members of the police investigative team admitted conditionally, subject to further evidence as contemplated by section 57 of the Evidence Act 1995 and further argument as to admissibility
Key Takeaways
- Under section 55 of the Evidence Act 1995, evidence bearing on wilful blindness to exculpatory material, or on an improper motive to procure a prosecution, is capable of being relevant to the element of malice in a malicious prosecution claim.
- The High Court's reasoning in Trobridge v Hardy (1955-1956) 94 CLR 147 confirms that a prosecutor's refusal to consider exculpatory matters is relevant to establishing malice.
- Where defendants' written requests for particulars were limited in scope and did not specifically address malice, the absence of particularisation of malice-related evidence carried less weight against admission.
- Evidence not opened on by plaintiff's counsel may still be admitted in civil proceedings where a satisfactory explanation is given for the omission and no genuine prejudice to the opposing party is established.
- Sections 55, 56, 57, 98, and 99 of the Evidence Act 1995 reflect, in O'Keefe J's view, a legislative objective in civil matters that courts should have access to as full a body of relevant evidence as the circumstances permit.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW): ss 55, 56, 57, 98, 99
Cases
- Trobridge v Hardy (1955-1956) 94 CLR 147 (High Court of Australia)