Beckett v State of New South Wales
[2014] NSWSC 1600
•13 November 2014
Supreme Court
New South Wales
Medium Neutral Citation: Beckett v State of New South Wales [2014] NSWSC 1600 Hearing dates: 11 November 2014 Decision date: 13 November 2014 Before: Harrison J Decision: Application dismissed
Catchwords: EVIDENCE - application to adduce evidence pursuant to s 63(2) where witness unavailable by reason of death - whether applicant should have anticipated the death - whether failure to call witness amounted to conduct that disentitled reliance upon the provision - whether the death of witness during the hearing was to be distinguished from a witness who predeceased the commencement of proceedings Legislation Cited: Evidence Act 1995 Cases Cited: Ordukaya v Hicks [2000] NSWCA 180 Category: Procedural and other rulings Parties: Roseanne Beckett (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
P E Blacket SC, K T Nomchong SC & N Broadbent (Plaintiff)
J E Maconachie QC, P Saidi & A N Williams (Defendant)
Solicitors:
Turner Freeman (Plaintiff)
I V Knight, Crown Solicitor (Defendant)
File Number(s): 2008/289411 Publication restriction: Nil Decision under appeal
- File Number(s):
- 2008/289411
Judgment
HIS HONOUR: Ms Beckett sues the State of New South Wales for malicious prosecution. She was arrested on 24 August 1989 and charged with several criminal offences including two of solicit to murder. She was subsequently tried and convicted on several counts by a jury following a long trial in 1991. Ms Beckett was sentenced to, and substantially served, a long term of imprisonment. Many of her convictions were later quashed by the Court of Criminal Appeal and a new trial was ordered. Ms Beckett was not ever retried and a nolle prosequi was later entered in her favour.
These proceedings were originally commenced in 2008. Peter Thomas and Carl Paget were named as the prosecutors. The substantive hearing before me commenced on 28 July 2014. Ms Beckett completed her evidence on 6 August 2014. Mr Thomas died on 25 August 2014. I was notified of that fact on 28 August 2014. The hearing was adjourned the following day, for unrelated reasons, until 27 October 2014.
On 24 October 2014, the State gave notice to Ms Beckett pursuant to s 67 of the Evidence Act 1995 that it intended to adduce evidence of previous representations made by Mr Thomas and to argue that the hearsay rule does not apply to those previous representations in reliance upon s 63(2) of the Act. The State has attached two very large volumes of written material to the notice that it has served. It will be necessary to refer to at least some of that material in due course.
Ms Beckett opposes the State's proposed reliance upon all of that material for any purpose. She does so on a number of grounds. Those grounds are partly based upon material deposed to by her solicitor Mr Goldberg in his affidavit sworn 6 November 2014, which was read on this application without objection or cross-examination.
Background
Ms Beckett first became aware that Mr Thomas had prostate cancer sometime in July 2014. Her solicitor wrote to the State on 18 July 2014 in the following relevant terms:
"We have been advised that Peter Thomas has prostate cancer, is ill and is undergoing treatment at a hospital in Brisbane.
We are instructed to give you notice of this fact and to advise you that we intend to rely upon this letter in the event that the defendant seeks to tender any evidence of Thomas without him being available for cross-examination.
We give you notice in advance that we will object to the admission of any evidence of Thomas without him being cross-examined.
If necessary, we will seek a direction that Peter Thomas give his evidence in this matter sooner rather than later because of this fact, be it on commission or early in the trial, and suggest that immediately after the plaintiff has given her evidence may be a suitable time."
No reply to that letter was ever written.
The matter came before me for directions on 22 July 2014. The following relevant exchange took place concerning Mr Thomas:
"BLACKETT: Mr Thomas is a very important witness in the case, and we understand he is in very poor health, although we have not direct knowledge that he is in poor health. I'm just concerned about my friend's reference to video link. I don't want to put him to any inconvenience that is unnecessary, but if Mr Thomas' health is not good, we need to know, and we need to know to take his evidence in advance.
HIS HONOUR: Where does he live?
BLACKETT: Brisbane, I understand. Perhaps my friend can make those inquiries. I do not want to be confronted with a situation where Mr Thomas is suddenly not available.
HIS HONOUR: That is on the assumption that he is to be called.
BLACKETT: I understand he is being treated for a serious medical condition.
HIS HONOUR: I understand he might be called as a witness.
BLACKETT: My friend's court book includes statements and evidence of Mr Thomas, and I would require him for cross examination.
HIS HONOUR: That does not foreclose on the prospect that he may not be called.
BLACKETT: Then, his evidence may not go in.
HIS HONOUR: We are in furious agreement. The fact that he has prepared a statement, if you require him for cross examination, the usual rules will be that, subject to any s 67 applications, his evidence would not go in unless he were cross examined. I'm foreshadowing the prospect that Mr Maconachie may choose not to call him. That is not something that you would necessarily complain about, but it is a prospect.
MACONACHIE: It is prospect, but a very low prospect, as I presently see the case, being a realist. I will see what my friend puts before your Honour before I make any determination on whether I will call any evidence and if so with whom. I say that to put him on notice that I'm not going to be forced into calling Mr Thomas, as was suggested to us out of court, immediately after the plaintiff. It is not that kind of case. Just so that he knows our position, your Honour."
Ms Beckett's solicitor again wrote to the State on 1 October 2014 in terms that included the following:
"We refer to our letter dated 18 July 2014 in which we notified the defendant that Peter Thomas was critically [sic] ill and invited the defendant to apply to have Mr Thomas' evidence taken out of turn. The defendant did not do so. However, we note that on a number of occasions during the hearing of this matter, senior counsel for the defendant advised the Court that the defendant would be calling Mr Thomas and, on some occasions identified the issues on which Mr Thomas would give evidence. The clear inference is that the defendant's legal representatives had interviewed Mr Thomas and obtained information from him as to the evidence he was likely to give when called to give evidence.
Mr Thomas died on 25 August 2014.
We have not received any notification pursuant to s 67 of the Evidence Act 2005 [sic, 1995] or otherwise, that the defendant intends to adduce any evidence in respect of [sic] Peter Thomas.
In the event that the defendant does wish to adduce evidence of Peter Thomas, we request that you serve the requisite s 67 notice by no later than ...7 October 2014 so that we have sufficient time to consider the material intended to be adduced...
...
...the defendant is required to provide notification of all representations by Peter Thomas known to it, whether or not they are contained in the Court Book, current exhibits or any other documents currently before the Court."
The parties exchanged other correspondence on related, but not critical, matters. Part of a letter dated 16 October 2014 written by Ms Beckett's solicitor is as follows:
"We have written two letters to you about the evidence of Peter Thomas, being those dated 18 July 2014 and 1 October 2014. We note that neither letter has been the subject of any response from your office. Please explain why there has been no response to either of our letters. Please explain why the issues set out in our letter of 18 July 2014 were not the subject of a response, or dealt with as a matter of urgency.
The letter of 18 July 2014 in particular was written to you three months ago and foreshadowed the unavailability of Thomas. The letter was the subject of comment by your senior counsel, Mr Maconachie on 22 July 2014 where the following discussion took place before Justice Harrison...
...
The proposal raised in our letter of 18 July 2014 was a method of dealing with his potential unavailability. It was rejected by the defendant, as set out [in the Court transcript on 22 July 2014].
Another option that was available was that Thomas gave his evidence on commission, either before the appointed trial judge, Justice Harrison, or before an examiner, before the trial started.
...
Peter Thomas is and always was a crucial witness, as you would have to concede.
You had the opportunity to call Peter Thomas and your senior counsel advised the Court that he refused to take the option suggested by us, or any option.
In the circumstances, it is completely inappropriate for any aspect of this issue in this matter to be dealt with at 9.00am tomorrow 17 October 2014 before the Registrar, when the matter is part heard before Harrison J, in circumstances where your request throws up a multiplicity of issues, some of which are outlined in this letter, and in respect of which you have not responded to our requests for information."
Ms Beckett's solicitor wrote to the State on 30 October 2014. Relevantly for present purposes, that letter was as follows:
"...we are instructed to request the following information.
1. Upon what dates were conferences and/or teleconferences held with Mr Thomas since the commencement of this action:
(a) in person;
(b) via telephone.
2. Please advise the name and contact details of each solicitor and barrister who attended each conference, and each person present at each conference?
3. Please set out the knowledge held by the Crown Solicitor's Office or its representatives of Mr Thomas' metastatic cancer or related illness. In particular:
(a) When did either or each of the defendant, the Crown Solicitor's Office or its representatives first become aware of his illness, either specifically or generally?
(b) What information was conveyed about the extent and nature of the illness?
(c) What steps were taken by the defendant, the Crown Solicitor's Office or its representatives to independently ascertain the extent and nature of the illness, and in particular, the likelihood of Mr Thomas being available at trial?
(d) What records are available to substantiate these matters? Please provide copies.
Please note that "representatives" includes Counsel briefed at any time in this matter.
4. Following receipt of the knowledge of Mr Thomas' illness, what steps were taken, and when, to:
(a) secure his attendance at trial?
(b) obtain an account of events from him, by way of proof of evidence or otherwise?
(c) obtain instructions in relation to taking evidence on commission or interposing Mr Thomas' evidence?
(d) investigate the prospect that he would not or may not be available to give evidence at trial?
5. What correspondence or communication of any nature was entered into by the defendant, the Crown Solicitor's Office or its representatives, with Mr Thomas, members of his family, representatives or medical professionals following receipt of the plaintiff's letter dated 18 July 2014, attached?
Please note that "representatives" includes Counsel briefed at any time in this matter.
6. Following receipt of the plaintiff's letter on 18 July 2014 above, what steps were taken to:
(a) secure his attendance at trial?
(b) obtain an account of events from him, by way of proof of evidence or otherwise?
(c) obtain instructions in relation to taking evidence on commission or interposing Mr Thomas' evidence?"
With some limited exceptions, the State's response to that letter did not provide or offer to provide any of the information that was requested. It did however include the following:
"The unavailability of a person under the Evidence Act 1995 is not dependent upon any considerations of whether anyone knew whether a given witness was or might be going to die at some future point and knowledge by any person as to the health condition of Mr Thomas at any given time has no bearing on the admissibility of prior representations of Mr Thomas pursuant to s 63 of the Evidence Act 1995.
I am not aware of any authority suggesting that an inference can be drawn against a party for failing to call a witness by interposing them or taking other steps to obtain or preserve their evidence, even where that party [is] aware that a given witness was in poor health.
It is abundantly clear from your investigations (the subpoena to the hospital) that you were taking a far greater interest in the health status of Mr Thomas than were the representatives of the defendant. A similar inference could be drawn from your letter of 18 July 2014.
...
I am instructed to reply that conferences were held between representatives of the defendant and Mr Thomas for the purpose of preparing for trial on [24 July 2104].
I am further instructed that no-one acting for the defendant had any knowledge as to the gravity of the last illness of Mr Thomas and that his death occurring when it did was a genuine surprise to all concerned. It was the expectation of the defendant that he would most likely be called to give evidence in the case of the defendant."
On 11 November 2014, Mr Maconachie indicated that he had indeed conferred with Mr Thomas on 24 July 2014 and that he appeared to be in robust health. Mr Maconachie's remarks concerning this were recorded as appears below:
"He was seen in conference on 24 July by me and others. It went for five hours or thereabouts. He had no breaks, he didn't want any breaks. I made a personal observation that he was well in all of the circumstances and I saw absolutely no reason, none, to expect that he would not be available to give evidence in the course of the proceedings as they were expected to go forward. Nothing in this material gainsays what was seen on 24 July when he was seen in conference. To say that there ought to have been steps taken in advance of his quick and plainly rapid decline from the end of July to 25 August requires more than has been put before you by the plaintiff."
The material to which Mr Maconachie referred included a series of medical reports annexed to Mr Goldberg's affidavit prepared by Mr Thomas' treating oncologist. It is important to refer to some of that material, noting that there is presently no evidence before me to indicate either that the reports themselves or the effect of the opinions that they contain were drawn to the notice or the attention of the solicitors for the State before Mr Thomas died.
Dr Euan Walpole reported on Mr Thomas on 17 April 2014 and 2 May 2014. The relevant portions of those reports are as follows:
"I would be grateful if you could see Peter who I have known for some time now after presenting with hormone resistant prostate cancer. He was originally treated surgically and with subsequent hormones developed progressive disease. He was very fit and well. He has subsequently had chemotherapy for this with generally quite good results and good functional status whilst working full-time. He has had with a great response in both symptoms PSA and alkaline phosphatise initially with Taxotere. On recurrence he has had no effect with either abiraterone or cabazitaxel. Recently he has had some mitoxantrone with improvement in his PSA and alkaline phosphatase though he has now some more symptoms which is concerning.
At present, he is known to have bone disease mainly around his pelvic area rather than being disseminated. He has got more problems with pain in his right hip and some weakness in his leg that was concerning me so he has had an MRI of his lumbosacral spine. This shows some areas of disease but nothing to really explain the weakness and think this based on the known disease in the sacroiliac area which was saw on his last bone scan. I have not done any further investigations and figures you would decide what was most appropriate for your needs. I will back out of all systemic therapy apart from continuing him on his low dose steroids. He will also continue on Denosumab for his bone metastases. He despite having a response to mitoxantrone I need to stop this as his ejection fraction has fallen after six doses.
*****
I reviewed Peter again today. Peter is having ongoing problems with his pain near with his right hip and weakness of his right let. He has had an MRI of the spine which does show some bony disease but none that really explains this issue. I therefore suspect it is related to a sacroiliac area of disease which was known on his previous bone scans. Overall we have seen an improvement in his PSA on his Mitoxantrone treatment but his left ventricular ejection fraction has fallen on treatment and we will therefore need to stop it.
I would be keen for him to explore the options of radiation particularly with this painful area and this weakness. We talked about where he would have treatment and he would be keen to have treatment at this site so I will ask Margot Lehman to see him at the Princess Alexandra Hospital.
Dr Walpole reported on 27 June 2014 as follows:
"Thank you for seeing Peter, who has metastatic prostate cancer failed hormonal management, as well asTaxotere, Carbazetaxel and recently had Mitoxantrone. The latter was ceased with a reduction in left ventricular function on scans, but he was asymptomatic.
He has just completed some radiation to painful bone sties, but is keen to look at any option for treatment."
On 22 August 2014, Dr Walpole referred Mr Thomas to Dr Parker, a palliative care specialist. Mr Thomas died three days later.
Consideration
It is not in issue that Mr Thomas was central to the events that give rise to these proceedings and that he was a potentially significant witness to the events that have occurred. Because of the way in which Ms Beckett puts her case, proof of his subjective state of mind is critical to Ms Beckett's attempts to establish that he improperly acted or conspired falsely, corruptly and dishonestly to fabricate or construct the case against her. He was not, on Ms Beckett's case, a prosecutor who was honestly and professionally indifferent to the truth or otherwise of the facts that came to his attention as the prosecutor, upon the basis of which he formulated and prosecuted the charges that those facts were alleged to support. Ms Beckett's case that there was an absence of reasonable and probable cause for Mr Thomas to believe that she was guilty of the charges is founded on the proposition that he not merely had reasonable grounds to suspect that she was not guilty of any of the charges but that, by reason of his active involvement in constructing the evidence against her, he actually knew she was not. Ms Beckett's case that Mr Thomas acted maliciously in prosecuting her is based upon a similar analysis.
To that extent at least, Ms Beckett maintains that the opportunity to cross-examine Mr Thomas was a critical event in the establishment of her case. The material that was before Mr Thomas as the prosecutor is voluminous. It presently occupies six volumes of what has come in these proceedings to be described as the "Crown Court Book". There may be more documents forming part of what was unarguably before Mr Thomas as the prosecutor before this case is over. By definition, however, this material does not include those matters that Ms Beckett says were known to Mr Thomas but which, for the most obvious of reasons, were never recorded by him or spoken about with others. These are matters that remained secreted within Mr Thomas' memory, but which Ms Beckett was no doubt hopeful of exposing. It is equally plain that the anticipated cross-examination of Mr Thomas was the principal available means, although admittedly not the only means, of doing so.
Ms Beckett formulates her resistance to the State's attempt to adduce the evidence in question in two distinct ways. The first is based upon an analysis of the background material to which I have referred, in aid of a contention that the State ought, as a matter of general discretion, to be prevented from adducing the evidence because of the way in which it has conducted itself as a litigant in these proceedings. Briefly put, the State was placed on notice from an early date by Ms Beckett, even if it ought not otherwise to have appreciated the fact, that Mr Thomas was ill and that there was at least some prospect that he may be unavailable through death or anterior incapacity to attend court to give evidence. This notice was given as early as 18 July 2014. Ms Beckett maintains that the State, especially as a model litigant, and especially having regard to Mr Thomas' pivotal role in the proceedings, ought to have arranged for his evidence to be taken while he was still able to provide it. Ms Beckett maintains in this respect that the State was under an obligation to ensure that both she and the Court were kept informed of Mr Thomas' health and progress in order that steps could be taken to secure his evidence if his condition deteriorated.
The burden of Ms Beckett's contentions in this respect is that Mr Thomas' evidence was always likely to be critical, and that the State cannot in such circumstances be permitted to rely upon his evidence when he is dead if it did not take reasonable steps to adduce the same evidence while he was alive. Although not in terms formulated in this way, Ms Beckett's contentions are really based upon the proposition that it would be unfair for the State to have the benefit of Mr Thomas' evidence without being subjected to the potential corresponding burden of his cross-examination.
It seems clear that Mr Thomas' condition deteriorated rapidly from being apparently normal, or at least not apparently incapacitating or imminently life threatening when seen by Mr Maconachie and his legal team in late July, to being moribund a month later. Ms Beckett maintains that she should have been told of this whereas the State contends that it did not have any reason to suspect it. My present difficulty is that there is no sufficient basis for concluding that the State had any real basis for anticipating that Mr Thomas would die when he did. The evidence certainly supports the fact that his condition deteriorated very rapidly and that his death was to a certain extent unexpected when it occurred even if his death was rapidly approaching. It is important to observe that there is no explicit prediction of Mr Thomas' likely date of death in the expert medical opinion to which I have referred.
The burden of Ms Beckett'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 either in extremis or about to die, thus at least potentially depriving her of a significant forensic advantage. Ms Beckett contends that the State should not as a matter of discretion be permitted to take advantage of such conduct in the circumstances. In the events that have occurred it is unnecessary for me to express a view about whether any such basis for opposing the evidence exists as a matter of principle. That is because I cannot be satisfied as a fact that the State was sufficiently armed with any reasonable expectation that Mr Thomas was likely to die before giving his evidence, so the underpinning factual basis for a consideration of the asserted principle is missing. I also express no view about whether or not any such principle as the one relied upon exists at all or can be accommodated to a case such as this, where even for a model litigant forensic choices about when or whether to call a witness remain important considerations in adversarial litigation.
Secondly, Ms Beckett contends that the evidence that the State proposes to adduce should be rejected at this stage upon the basis of s 135(a) of the Act. Ms Beckett submits that I should refuse to admit the two volumes of evidence of Mr Thomas' representations upon the basis that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to her.
The thrust of that contention resides once again in a comparison of the importance of Mr Thomas as a witness in this case on the one hand, and the arguable significance to her case of being unable to cross-examine him upon the evidence if admitted on the other hand. I was referred to the dissenting opinion of Mason P in Ordukaya v Hicks [2000] NSWCA 180. His Honour expressed the view that the concept of unfair prejudice under s135 (a) is not limited to misuse of evidence by the tribunal of fact and may arise from procedural considerations. Thus an opposing party may be significantly prejudiced by hearsay evidence if that party is unable to cross-examine on a crucial issue in the litigation. His Honour said this at [6]:
"[6] In my view this danger identifies the core notion of 'unfair prejudice' and the purpose of the discretion to exclude evidence on that basis. In R v BD (1997) 94 A Crim R 131 at 139, Hunt CJ at CL referred to evidence as unfairly prejudicial 'if there is a real risk that the evidence will be misused by the jury in some unfair way'. Citing this, the learned author of Odgers, Uniform Evidence Law 3rd ed (1998) states at p443:
Plainly, it is likely that this 'danger' will usually only have significance in a jury trial. Where the trial is by a judge without a jury, it will be an unusual judge or magistrate who is prepared to concede that a danger exists that he or she might be 'unfairly prejudiced' by evidence. On the other hand the provision is not limited to misuse of the evidence by the tribunal of fact. Unfair prejudice may arise from procedural considerations. Thus an opposing party may be significantly prejudiced by hearsay evidence if unable to cross-examine on a crucial issue in the litigation. Alternatively, the opposing party may be unfairly prejudiced by evidence if prevented from properly challenging its reliability.
I agree. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1999] FCA 1269."
I was not specifically referred to the majority decision of Sheller and Meagher JJA. Their Honours were of the opinion that s 135(a) requires, not the prejudice, but unfair prejudice, to be weighed against the probative value of the evidence. Admission of hearsay evidence under s 64 of the Act necessarily carries with it prejudice to the opposing party as by definition the maker of the statement cannot be cross-examined. However, in their Honours' view, that danger did not make the prejudice unfair to the point of outweighing material of high probative value such as the statutory declaration in that case.
To the extent that it is necessary to do so, I consider that this case is clearly distinguishable on its facts. The evidence sought to be adduced consists of literally hundreds and hundreds of pages. The representations upon which the State proposes to rely have not been specifically identified and are not easily identifiable within the wealth of material concerned. The evidence is not confined to a single statutory declaration on limited issues or confined topics but appears to extend over an extremely wide range of subject matter. Nor is the material confined to a limited timeframe but extends from as early as July 1989 prior to Ms Beckett's arrest to as late as the Davidson Inquiry in 2003. I have also not been informed of precisely how the material is said to be relevant to the State's case of rebutting Ms Beckett's evidence in support of proof by her of the absence of reasonable and probable cause or malice. It also seems plain that, to the extent that the material post-dates Ms Beckett's conviction, it could not have been and cannot be considered to be material that was relevantly before Mr Thomas in his capacity as the prosecutor at the relevant time.
In my opinion, the most significant factor in this context is the critical and central role played by Mr Thomas. He lies both at the centre of Ms Beckett's case and at the centre of the State's response to it. Cross-examination of Mr Thomas is therefore not to be so easily brushed aside as a merely or largely formal procedural consideration. What unrecorded matters might have been residing in the mind and conscience of Mr Thomas are patently and by definition now no longer capable of being revealed. Ms Beckett could not ever have had the slightest chance to explore it if not through cross-examining Mr Thomas in open court before me. Ms Beckett has absolutely no chance of doing so now after his death. It is in that context that the true extent of the prejudice associated with admitting his documents for all purposes has to be considered and assessed.
In my opinion, the admission of the evidence of Mr Thomas' representations that the State wishes to adduce would create a fundamental and insurmountable prejudice to Ms Beckett. The probative value of that evidence is both questionable and limited. It contains and exudes a largely if not wholly unilateral view of events from a witness whose motives are fundamentally in issue in these proceedings and intimately concerned with the issues in this case. Since his death there is no remaining scope for either party or me to gauge this evidence with the assistance of its author. Much of it is, in any event, available for consideration by me as material that was before the prosecutor.
The probative value of this evidence is in my opinion overwhelmingly outweighed by the unfair prejudice that would attend its reception.
I note in passing that I have not been prepared to conclude that the State is precluded from attempting to adduce this evidence by its conduct in failing to advance the evidence of Mr Thomas in the face of his likely early demise. I do not however consider that an application to adduce his evidence post mortem pursuant to s 63(2) was ever going to be entirely uncontroversial, as my conclusions about it have demonstrated. In that sense it was always within the power of the State to seek to call or interpose Mr Thomas when any possibility existed that his representations might not be received after his death. Each of Ms Beckett and the State had an interest in calling Mr Thomas during his lifetime and the advantageous litigious consequences of his death cannot all be enjoyed by the State whilst the disadvantageous ones are all borne by Ms Beckett.
Ms Beckett also argued that s 63 did not apply in the circumstances of this case because it was inaccurate to describe Mr Thomas relevantly as "not available" within the meaning of that expression in s 63(1). The Dictionary to the Act provides that "a person is taken not to be available to give evidence about a fact if... the person is dead." Ms Beckett described the State's reliance on s 63(1) as "misplaced". She contended that "on its proper construction", Part 2, clause 4(1)(a) of the Dictionary "does not apply to the circumstances" of Mr Thomas. Ms Beckett submitted that when the provision is considered in its context and in cognisance of its purpose, it is clear that it is not intended to include a witness who was alive earlier in the proceedings but has died before he or she was called to give evidence. Mr Thomas was such a person.
Ms Beckett made the following submission:
"53. Looking at the clause as a whole in this way, its purpose is readily apparent. Where the attendance of a witness in court may be procured by the parties, the purpose of the section is to require a party to take reasonable steps to do so before it may rely on the witness' unavailability to adduce hearsay evidence. In circumstances where no action of the parties could cause the witness to give evidence, the parties do not have to show that reasonable steps were taken."
No authority is cited for this contention. I do not find that surprising. This argument is no more than a reformulation of the argument that the State had an obligation to call Mr Thomas during his lifetime if they expected or anticipated that he might die beforehand. The argument asserts in effect that a party cannot rely upon the defined unavailability of a witness if they have caused or contributed, by action or otherwise, to the events that led to the unavailability.
I do not think that there is any basis upon which this contention can succeed. The definition of "not available" is not expressly or impliedly conditioned by reference to when the witness becomes unavailable or by reference to any role played by the party seeking to adduce the evidence in what caused it. The wholly unexpected demise of a witness cannot in this context easily be distinguished from an anticipated death. The date when a decision to call a witness is made cannot be the determinant of whether the witness is relevantly not available when he or she dies. Ms Beckett's contentions are fundamentally underpinned by the need to characterise the conduct of the State in this case as disentitling it to rely upon the provision. There is nothing in the provision itself that suggests that this is a legitimate approach. Taking account of the purpose of the provision does not, to my mind, helpfully inform the answer, where unavailability caused by death is the unadorned issue that triggers the entitlement to adduce the evidence in this way.
Conclusion
In these circumstances I consider that the State's application to adduce the evidence of the previous representations of Mr Thomas in reliance upon s 63(2) of the Evidence Act should be dismissed. I will mark the two folders of documents referred to in the s 67 notice for identification if required.
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Decision last updated: 17 November 2014