Nye v New South Wales - [2002] NSWSC 1268

Reported Decision:
(2002) 134 A Crim R 245

New South Wales

Supreme Court

CITATION: Nye v State of New South Wales & ors [2002] NSWSC 1268 revised - 10/02/2003

FILE NUMBER(S): SC 21458/96

HEARING DATE(S): 26/09/02

JUDGMENT DATE: 27 September 2002

PARTIES :

Garry Raymond Nye
State of New South Wales
Wayne Popplewell
Wayne Desmond Gordon
Peter James Hawley
David John Barnett
Director of Public Prosecutions

JUDGMENT OF: O'Keefe J

COUNSEL : Plaintiff: Mr B Donovan QC with Mr D Baran and Mr C Thompson
Defendant: Mr I Temby QC with Mr P Lakatos

SOLICITORS: Plaintiff: Miss E Faccin - Carol & O'Dea (Sydney)
Defendant: Ms G Fuller - Crown Solicitor's Office (Sydney)

CATCHWORDS: Malicious prosecution - Malice - Evidence - Relevance - Common law concept of relevance expanded by Evidence Act 1995 - Exclusion of representations made in connection with an investigation relating or leading to a criminal prosecution - Business records - Royal Commission engaged in a business - Evidence adduced at Royal Commission is not a representation made in connection with an investigation relating or leading to a criminal proceeding - Royal Commissioner engaged in a business - Words and phrases - "in connection with", "relating to", "leading to".

LEGISLATION CITED: Evidence Act 1995: ss 55(1), 56, 69(1), (2), (3), 135, 136, 137, dictionary Part 1 and Part 2, cl 1(1)(d)
Royal Commissions Act 1923: s 5
Royal Commission (Police Service) Act 1994
Evidence Act 1898: ss 14CD, 14CF, 14CG

CASES CITED: 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
Trowbridge 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

DECISION: Parts of transcripts of evidence given to Royal Commission into Police Service admitted.

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SYDNEY LIST

O’Keefe J

27 September 2002

21458/96 Nye v State of New South Wales and Ors

1 Garry Raymond Nye (the plaintiff) has sued the State of New South Wales, Wayne Popplewell, Wayne Desmond Gordon, Peter James Hawley, David John Barnett and the Director of Public Prosecutions for malicious prosecution. The plaintiff was arrested on 24 July 1991 and charged, inter alia, with having murdered Roy Thurgar at Randwick on 20 May 1991. He was acquitted of this charge in November 1992.

2 The plaintiff has claimed damages for malicious prosecution on the basis that the malice in the case can be proved by showing that the circumstances in which the prosecution was brought and the evidence said to support it were such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 1268
Decision Date: 27 September 2002

CaseChat Overview and Summary

In the case of Nye v New South Wales, the plaintiff sought to recover damages for malicious prosecution against the State of New South Wales. The dispute arose from the plaintiff's prosecution for drug-related offences, which was later quashed, and his subsequent claim for damages. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's claim was barred due to the operation of section 118 of the Evidence Act 1995, which excludes evidence of representations made in connection with an investigation relating or leading to a criminal prosecution. Specifically, the court had to determine whether evidence of the plaintiff's alleged drug-related activities, as adduced during a Royal Commission, constituted such a representation. The plaintiff argued that the Royal Commissioner was not engaged in a business for the purpose of the definition in section 117 of the Evidence Act, and therefore the exclusion did not apply.

The court held that the Royal Commissioner was indeed engaged in a business for the purposes of the Evidence Act. Consequently, the representations made during the Royal Commission were considered as being made in connection with an investigation relating or leading to a criminal proceeding. The court also interpreted the phrase "in connection with", "relating to", and "leading to" in a manner consistent with the common law concept of relevance, thereby excluding the evidence in question. As a result, the plaintiff's claim for malicious prosecution was dismissed.

The court did not make any specific orders beyond dismissing the plaintiff's claim for malicious prosecution. The decision highlights the importance of understanding the scope and application of the Evidence Act's exclusion provisions and the interpretation of key phrases in the context of investigations and prosecutions.

Orders