Nye v State of New South Wales & ors

HIS HONOUR: Evidence was given on the voir dire on 30 August 2002 by a witness whose name and details have been suppressed, and will be described as "JS". Her evidence related to her interactions with certain police who formed part of the police team involved in the investigation of the murder of Roy Thurgar on 20 May 1991. Some of the interactions were with police other than the named defendants; some with certain of the named defendants.

A decision was made to take her evidence on the voir dire and to determine at a later stage whether it should be received as evidence in the trial or not. Near the end, or what was thought to be approaching the end, of her evidence on the voir dire senior counsel for the defendants indicated that he was anxious to cross-examine the witness but was not then in a position to do so. He informed the Court that he would be in a position to do so within a relatively short time. As a consequence the further evidence of the witness was adjourned until 3 September 2002. On that date senior counsel for the defendants submitted that her evidence should not be received as evidence in the trial and that no further evidence should be taken from her on the voir dire in relation to matters of the kind dealt with on the voir dire to that date.

This submission rested on the bases that: (a) such evidence could be directed only to the question of malice; (b) it was in some instances concerned with police other than the named defendants; (c) the specific matters already dealt with in evidence given on the voir dire had not been opened or otherwise particularised; (d) conformably with the decision given on 2 September 2002, in relation to certain other evidence, such of her evidence as had been objected to should be rejected, and no further evidence of matters not opened on should be permitted. An additional basis for this last submission was the proposition that the decision of 2 September 2002 depended wholly on the form of the pleadings and the absence of particularisation of matters in writing or in opening, rather than on any question of prejudice or comparative prejudice.

In the decision given on 2 September 2002 concerning matters passing between the plaintiff's wife on the one hand, and officers Keys and Devine on the other, a distinction was made between evidence of certain short oral statements said to have been made by such officers at a police station during the course of their interrogation of Mrs Nye, and evidence of a visit by them to the Nye residence at Upper Colo, the scene of the multiple arrests on 24 July 1991.

Evidence of the former matter was excluded because of its transient nature and the likelihood that the passage of time could have obliterated any recollection of the matter. To admit the evidence could have been, in those circumstances, "a real prejudice to the defendants." (Judgment page 8.) Thus, contrary to the submission referred to in (d) above, prejudice was a live and operative consideration in relation at least to that part of the evidence dealt with in the judgment of 2 September, 2002.

Insofar as evidence concerning the visit to Upper Colo by officers Keys and Devine was concerned, the decision made it clear that its nature was such as to fall within the general statements made in opening and such as to be likely to be remembered and even recorded in some manner. As a consequence no question of prejudice to the defendants arose.

The evidence sought to be adduced from JS is directed to the issue of malice. Much of it specifically involves both the defendant Wayne Gordon and the defendant Wayne Popplewell (named personal defendants). Although the evidence is confused in some respects (a factor which goes to its weight) a deal of it is clearly directed to the two named personal defendants. It involves repeated assertions by the witness to them that the principle Crown witness, Danny Shakespeare, was "a liar", that what he was saying "was all a load of rubbish", that by encouraging him and accepting him "they were making fools of themselves". These would be matters relevant to the assessment of whether or not a charge of murder would have been persisted in against the plaintiff in the absence of an improper motive. Furthermore, in her evidence she claims that, because of her persistence, "they stopped talking to me. They used to make me leave the room". If accepted it is possible that this evidence may affect the assessment of the probability that there was malice.

The assessment of the credibility and weight of evidence is a function to be performed by the Court only after the evidence has been admitted. Whilst a number of arguments may be advanced against the acceptance of JS's evidence, if it is accepted it would be relevant to such concepts as willful blindness on the part of the prosecutors, a refusal by them to consider exculpatory matters (as was said by the High Court to be relevant in Trobridge v Hardy (1955-1956) 94 CLR 147), and to other ways in which an assertion of malice may be supported.

Her evidence that either the defendant Gordon or the defendant Popplewell said to her that if she stayed with Danny Shakespeare until he commenced his evidence she would be given "a car, a house, money and a new life", and that "they would set [her] in protection..." needs to be considered. The acceptance or otherwise of this evidence, and the effect, if any, to be given to it, are matters to be dealt with when the evidence is concluded. However, the evidence is in my opinion relevant in the sense that that word is used in section 55 of the Evidence Act 1995. If it was said and was untrue it may be relevant to an argument that the defendants were anxious "to fit up the plaintiff" - a consideration relevant to the issue of malice.

In answer to the submission that the evidence to which the present argument was directed had not been specifically opened on, senior counsel for the plaintiff assured the Court that JS had not been located until after the opening had been completed and that on this ground alone the interests of justice bespoke its admission. In addition, it was submitted that as to the evidence that dealt with the two named personal defendants, it was distinguishable from that given in relation to officers Keys and Devine. I think that this is correct. Furthermore, since it involves both Gordon and Popplewell, and is specific, it was submitted that there could be no question of prejudice to them from allowing the evidence, and that the Court should exercise its discretion to allow it to be led, notwithstanding that it had not been opened on or otherwise particularised.

In this connection it is relevant to note that the particulars requested in writing on behalf of the defendants were limited in ambit and thrust. They did not deal specifically with matters of malice. As a consequence the particulars supplied did not touch on specific acts, omissions or events relating to malice.

In my opinion the evidence is relevant. If accepted it could be significant in relation to the issue of malice. It could thus be important in the plaintiff's case and its exclusion could result in a real detriment to the plaintiff. On the other hand, since it largely involves the two named personal defendants, and is reasonably specific, I do not think that such defendants would be prejudiced by its being led, subject to appropriate terms in relation to the giving of time for the defendants to make appropriate inquiries before cross-examination in relation to this area proceeded.

The relevance of the evidence, its possible importance, the prejudice that would accrue to the plaintiff from its rejection, and the absence of prejudice to the defendants from its admission, militate in favour of the admission of the evidence.

The Court should endeavour to arrive at a just result. To do so it should have before it as much evidence relating to issues as is possible in the circumstances. That appears to be one of the objectives of the Evidence Act 1995 in relation at least to civil matters. Sections 55, 56 and 57 are in my opinion indicative of such an objective. So too, for example, it would seem are sections 98 and 99. The interests of justice are best served by fullness in the evidence.

In the circumstances of the present case, and in the light of the matters to which I have referred above, I am satisfied that it is in the interests of justice to allow the evidence. Insofar as it is evidence that relates to members of the police investigative team, other than the named personal defendants, the evidence is admitted subject to further evidence as contemplated by section 57 of the Evidence Act 1995 and argument as to the admissibility of matters involving, and statements made by, members of the police investigative team.