Nye v New South Wales - [2002] NSWSC 1270

CITATION: Nye v State of New South Wales & ors [2002] NSWSC 1270

FILE NUMBER(S): SC 21458/96

HEARING DATE(S): 2/9/2002

JUDGMENT DATE: 2 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: Evidence - Statement by witness - Multiple possible inferences - Refining range of possibilities - "Could" in s 55 of Evidence Act 1995 means "it is possible it may" - Section 55 creates wide ambit of relevance - Relationship between s 55 and s 57 considered.

LEGISLATION CITED: Evidence Act 1995, ss 55, 57

DECISION: Statement by witness admitted.

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O'KEEFE J

Monday 2 September 2002

21458/96 - Nye v State Of New South Wales & Ors

1 O’KEEFE: Objection has been taken to the tender of a statement of 1 June 2000 made by John Barnett, who was a witness to the shooting of Mr Roy Thurgar on 20 May 1991.

2 Mr Barnett had previously made a statement dated 21 May 1991 in which he detailed his knowledge of the events of the evening of 20 May 1991, including the fact that he had seen the person who had committed the murder beside the car in which Mr Thurgar was at the time he was killed, and as the person who was responsible for the killing ran from beside the car into a nearby park.

3 In the statement of 1 June 2000 reference is made to warnings which are alleged to have been given to Mr Barnett. One was at about 3 o'clock in the afternoon after the events about which Mr Barnett's statement relates. It consisted of a note which he says was left in a blue shoe box outside his then address. On it were written the words "lose your memory". This note was later shown to two female police officers from Internal Affairs.

4 Going to the note: there is nothing more that appears to have been done in relation to this note in so far as it involved Mr Barnett.

5 Senior counsel for the defendants submits that there is no way in which evidence of that event could rationally affect the assessment of the probability of the existence of a fact in issue in these proceedings. In so submitting he points out that there are obviously multiple sources for any such note. One possible source could be a friend of the present plaintiff, who was then an accused, seeking to do him a favour by causing Mr Barnett not to give evidence…

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 1270
Decision Date: 2 September 2002

CaseChat Overview and Summary

Nye sued the State of New South Wales in relation to an incident that occurred during his arrest. The plaintiff claimed damages for injuries sustained during the arrest. The matter was heard in the Supreme Court of New South Wales. The primary legal issue for the court was whether the statements made by the arresting officer were admissible under section 55 of the Evidence Act 1995. The court had to determine whether the officer's statements, which described the events of the arrest, were relevant and could be admitted into evidence.

The court considered the language of section 55, which provides that evidence that is relevant is admissible. The court interpreted the term "relevant" in section 55 as having a wide ambit and allowing for multiple possible inferences from the evidence. The court also considered the relationship between section 55 and section 57, which provides that evidence that is not relevant is not admissible. The court held that the term "could" in section 55 means "it is possible it may" and that the officer's statements were relevant because they could have assisted the court in determining the facts of the case. The court found that the statements were admissible as they could have assisted in refining the range of possible inferences that could be drawn from the evidence.

The court held that the officer's statements were relevant and could be admitted into evidence. The court found that the statements could have assisted in refining the range of possible inferences that could be drawn from the evidence. The court also held that section 55 creates a wide ambit of relevance, and that the officer's statements were relevant because they could have assisted in determining the facts of the case. The court found that the statements were admissible and could be considered by the jury in determining whether the plaintiff's injuries were caused by the defendant's negligence.

The court did not make a final determination on the merits of the plaintiff's claim, but rather held that the officer's statements were admissible and could be considered by the jury. The court did not make any findings on the liability of the defendant or the extent of the plaintiff's injuries. The matter was remitted to the jury for further consideration in light of the court's ruling on the admissibility of the officer's statements.

Orders