Beckett v State of New South Wales  NSWC 1164 (22 August 2014)
Terry Goldberg, Partner of Turner Freeman Lawyers is representing Roseanne Beckett, who has sued the State of New South Wales for compensation for malicious prosecution.
The plaintiff’s case is that the prosecutor, former policeman Peter Thomas, fabricated the evidence of Ms Beckett’s guilt to frame her. The plaintiff is required to prove that Mr Thomas had an absence of reasonable and probable cause for initiating the prosecution against her, which she contends was for the fundamental reason that he knew where the truth actually lay (given that the evidence was his invention) and as such he knew that all facts in the case were totally inconsistent with her guilt.
In a different case Mr Thomas attempted to frame Christa and Ramon Bracamonte for arson by attempting to intimidate Ms Bracamonte into making a false confession implicating her husband. Ms Bracamonte secretly recorded a conversation between her and Mr Thomas where this inducement for false evidence took place. Ms Bracamonte and her husband were consequently acquitted of the charges. Ms Bracamonte gave evidence in these proceedings as to her dealings with Mr Thomas and how she recorded the conversation.
Ms Beckett sought to introduce the tape recording of the conversation as evidence of a tendency by Mr Thomas to initiate criminal prosecutions which he knew to be false.
The significant issue for determination was the extent to which the evidence could rationally affect the assessment of the probability of the existence of such a tendency by Mr Thomas, and whether the evidence ought to be excluded because this is outweighed by its prejudicial effect.
The plaintiff contended that this would corroborate the evidence in her case that Mr Thomas had maliciously prosecuted her on a number of occasions with an absence of reasonable and probable cause.
The State contended that the recorded conversation had to be considered in its particular context and that this destroyed or severely constrained its usefulness as evidence of any tendency Mr Thomas had.
The State also contended that the judge should use his discretion to refuse to admit the evidence because it would be unfairly prejudicial to the defendant.
The judge ruled that the tape recording was of significant value in assessing the probability that Mr Thomas had improperly used his powers as a police officer. The judge also ruled that the tape recording was not unfairly prejudicial to the State – Ms Beckett’s case was unambiguously directed at the character and characteristics of Mr Thomas in his capacity in the proceedings against her and that because Mr Thomas was a party to the conversation the defendant should have been able to accommodate any issues which might have arisen.
The judge allowed the tape recording to be admitted as evidence.