Beckett v State of New South Wales  NSWSC 1600 (13 November 2014)
Terry Goldberg, Partner of Turner Freeman Lawyers is representing Roseanne Beckett in a malicious prosecution suit against the State of New South Wales. Ms Beckett sued the State for compensation alleging she was framed by Peter Thomas.
The most important witness in the case was Peter Thomas.
At the time these proceedings were commenced it was the knowledge of both parties that Mr Thomas was suffering from cancer.
As early as 18 July 2014, Turner Freeman had given notice to the State that Mr Thomas was ill and that if the State intended to rely on his evidence then he should be called sooner rather than later so that he would not die before his evidence could be tested by cross-examination.
Mr Thomas died mid way through the trial on 25 August 2014.
On 24 October 2014, the State gave notice that it would rely on s 67 of the Evidence Act 1995 to adduce evidence of previous representations made by Mr Thomas. The State argued that this would mean that the hearsay rule would not apply to those previous representations.
The effect of this would be that Ms Beckett would have no opportunity to challenge the reliability of any of Mr Thomas’s evidence through cross-examination in court.
The plaintiff opposed the admission of Mr Thomas’ statements on a number of grounds:
1. Mr Thomas was a significant witness. The evidence that was attributable to Mr Thomas which the State intended to adduce as evidence was enormous – two volumes of Mr Thomas’ direct representations, being the evidence sought to be adduced consisted of hundreds of pages, extending over an extremely wide subject matter and over a time frame from July 1989 to 2003. The massive scale of this evidence, which we contended was of dubious reliability, could not be forensically tested via cross-examination and as such could not be used as evidence of the truth. The State was not merely proposing to rely on the narrow or uncontroversial evidence of a single statutory declaration or witness statement.
2. Mr Thomas’ subjective state of mind was central to the plaintiff’s case that he conspired falsely, corruptly and dishonestly to fabricate the case against Ms Beckett. The plaintiff’s case was not only that Mr Thomas had reasonable grounds to believe that Ms Beckett was not guilty, but that because he actively constructed false evidence against her he must have, of course, known she was not guilty. There was a quantity of evidence relevant to Mr Thomas’ state of mind which was never recorded or communicated to other people – evidence contained only in Mr Thomas’ memory. The only effective way of scrutinising this unknown evidence would be via the anticipated cross-examination of Mr Thomas.
We contended on behalf of the plaintiff that the burden of the plaintiff’s complaint is that the State improperly and inexcusably sat on its hands when it knew, or ought to have known, that a critical witness was on the verge of death, thus at least potentially depriving Ms Beckett of a significant forensic advantage. We contended that the State should not as a matter of discretion be permitted to take advantage of such conduct in the circumstances.
Secondly, we contended that the evidence that the State proposed to adduce should be rejected at this stage upon the basis of s 135(a) of the Act, which is in the following form”
“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.”
We submitted that the two volumes of evidence of Mr Thomas’ representations should not be admitted on the basis that their probative value was substantially outweighed by the danger that it might be unfairly prejudicial to our client.
The judge applied the dissenting opinion of Mason P in Ordukaya v Hicks  NSWCA 180, in which His Honour expressed the view that the concept of unfair prejudice could be extended to procedural considerations – an opposing party may be significantly prejudiced by hearsay evidence if that party is unable to cross-examine on a crucial issue of litigation. Harrison J distinguished these proceedings on its facts – the evidence sought to be adduced was of a massive scale, not such that the unfair prejudice of its reception would overwhelmingly outweigh any probative value. The judge made clear that he did not conclude that the State was precluded from attempting to adduce the evidence because of its conduct as such.
The judge dismissed the State’s application to adduce Mr Thomas’ representations as evidence. No evidence by Thomas was received by the Court.
The case awaits judgment.