Citation: Nye v State of New South Wales & ors [2002] NSWSC 1268; (2002) 134 A Crim R 245
Court: Supreme Court of New South Wales, Common Law Division
Date: 27 September 2002
Judge(s): O'Keefe J
Background
The plaintiff was arrested in July 1991 and charged with the murder of a man at Randwick in May 1991. He was acquitted in November 1992. He subsequently brought a claim for malicious prosecution against the State of New South Wales, four named police officers, and the Director of Public Prosecutions.
The plaintiff alleged that the case against him rested almost entirely on the evidence of a police informer whose credibility the police knew, or had reasonable grounds to doubt, before the prosecution was commenced. To establish this, the plaintiff sought to show that senior officers were aware the informer was untruthful and had communicated this to the officer in charge of the relevant part of the investigation.
To prove this knowledge, the plaintiff tendered portions of transcripts from the 1995 to 1996 Royal Commission into the New South Wales Police Service. Specifically, the transcripts recorded evidence given by a Detective Superintendent and a Detective Inspector about what they knew concerning the informer's reliability. The defendants objected to the tender.
Legal Issues
- Whether transcripts of evidence given before the Royal Commission into the Police Service constituted a "business record" within the meaning of section 69 of the Evidence Act 1995 (NSW), such that the hearsay exception could apply.
- Whether the exclusion in section 69(3)(b) of the Evidence Act 1995 applied, on the basis that the representations were "made in connection with an investigation relating or leading to a criminal proceeding."
- If section 69(3)(b) did not apply, whether the transcript evidence should be admitted subject to any other limiting provisions of the Act.
Decision
O'Keefe J found that the Royal Commission was a body exercising power under an Australian law and that its hearings constituted a "business" within the broad dictionary definition in the Evidence Act 1995. The transcripts of evidence given at the Royal Commission therefore qualified as business records under section 69(1), and the requirements of section 69(2) were satisfied because the witnesses giving evidence could reasonably be taken to have had personal knowledge of the facts they asserted.
The central contested question was whether section 69(3)(b) operated to exclude this evidence. That provision excludes business records where the representation was "made in connection with an investigation relating or leading to a criminal proceeding." The defendants argued that evidence given at the Royal Commission about the Thurgar murder investigation was sufficiently connected to that criminal proceeding to trigger the exclusion.
O'Keefe J rejected this argument. His Honour reasoned that the evidence adduced at the Royal Commission related to a police investigation that was long since complete and a prosecution that had already concluded. The witnesses were answering questions about past events, not participating in an investigation leading to, or relating to, a criminal proceeding in the sense that section 69(3)(b) contemplates. Statements taken from witnesses during the original 1991 murder investigation would fall within the exclusion, but evidence given years later at a Royal Commission is in a "fundamentally different situation."
His Honour also observed that construing the exclusion broadly would narrow the hearsay exception in section 69 and would be contrary to the general policy of the Act. The words "in connection with," "relating to," and "leading to" in section 69(3)(b) do not extend to evidence gathered by a Royal Commission about a concluded investigation and prosecution. Subject to any other applicable sections of the Act (such as sections 76, 91, 135, and 136), the transcript evidence was admitted.
Orders Made
- Parts of the transcripts of evidence given by Detective Superintendent Harding and Detective Inspector Wilson before the Royal Commission into the New South Wales Police Service were admitted into evidence.
Key Takeaways
- A Royal Commission conducted under an Australian law constitutes a "business" within the extended dictionary definition in the Evidence Act 1995, and transcripts of evidence given at such a Commission qualify as business records under section 69(1).
- The exclusion in section 69(3)(b) targets representations made during an active investigation that related to, or fed into, a criminal proceeding. It does not extend to evidence given at a Royal Commission years after the relevant investigation and prosecution had concluded.
- Under section 69(3)(b), the phrases "in connection with," "relating to," and "leading to" are to be read in light of the provision's purpose: excluding evidence gathered during the investigative process that generated the criminal proceedings, not evidence gathered in a subsequent, separate inquiry reviewing that process.
- Broadening the section 69(3)(b) exclusion beyond its evident purpose would narrow the hearsay exception in section 69 itself, which O'Keefe J held would run contrary to the general policy of the Act.
- Admission of the transcript evidence remained subject to the potential operation of other provisions of the Evidence Act 1995, including sections 76, 91, 135, and 136.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW): ss 55(1), 56, 69(1), (2), (3), 76, 91, 135, 136, 137, Dictionary Parts 1 and 2, cl 1(1)(d)
- Royal Commissions Act 1923 (NSW): s 5
- Royal Commission (Police Service) Act 1994 (NSW)
- Evidence Act 1898 (NSW): ss 14CD, 14CF, 14CG
Cases:
- 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
- Trobridge v Hardy (1955) 94 CLR 147
- 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