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

New South Wales Supreme Court

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

Garry Raymond Nye State of New South Wales Wayne Popplewell PARTIES : 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

JUDGMENT ; On admissibility of evidence; see p 285

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 that might be adverse to the plaintiff; a second possibility is that the person was seeking to do a like good turn for Mr Harlum, who was then the other accused; a third possibility is that it may have been somebody associated with Mr Thurgar, whether a relative or friend; and a fourth possibility is that it may have been the police. When the event is taken alone there is no way, in my opinion, in which a rational choice can be made between the possibilities to which I have referred. 6 However, senior counsel for the plaintiff says that subsequent events reduce the ambit of possibilities in such a way as to render the evidence admissible. 7 Mr Barnett's statement refers to a second incident. That occurred shortly before Mr Barnett was due to give evidence in the murder trial of the plaintiff and his then co-accused Mr Harlum at the Supreme Court in Katoomba. The statement indicates that at the time to which I have referred Mr Barnett saw a male person seated in a large car outside his house. The male person got out of the car and engaged Mr Barnett in conversation for no apparent reason. And when Mr Barnett said that he had to go to court the male person said "I wouldn't get involved in it". 8 The possibilities that exist in relation to the note said to have been found in the blue shoe box would seem to me to apply equally it this event. The person involved was described as 6 feet 2 tall inches of solid build, Australian in appearance, a body builder figure with medium complexion, short dark hair, and clean shaven. That could apply to any one of a number of people in the community. So it is non-specific and, in my opinion, does not advance the ability of the court to choose rationally between the competing possibilities. 9 However, there is a third event referred to in the statement. It followed a meeting between Mr Barnett and a person who was described as a police officer from Queensland, who I infer was assisting the Royal Commission into the Police Service which was conducted by Wood J, the now Chief Judge of the Common Law Division. The statement reveals that some two weeks prior to the witness meeting with the officer named in the statement, he saw the same male who had earlier warned him not to become involved in the Thurgar trial parked in a car outside his house. Again, the man approached Mr Barnett and asked him about the Thurgar matter, to which Mr Barnett replied that it was coming up in the Royal Commission. Thereupon the person in question said to him "don't get involved". 10 After the witness had seen the police officer from Queensland he again saw the same male parked in the same car outside his house and a conversation similar to that to which I have just referred ensued, in the course of which the male person again advised Mr Barnett not to get involved. The person who gave this advice and whose description I have already adverted to was not a person known by name to the witness Barnett but was a person who he had previously seen in the Randwick area and who used to train at the gym above the laundromat outside which Mr Thurgar was killed. 11 At the time of the two last mentioned approaches by the unidentified large male the Royal Commission into the New South Wales Police Service appears to have been proceeding, and as has emerged from other evidence already given in this case the Thurgar murder and matters associated therewith were matters which it was anticipated would be the subject of evidence. 12 On behalf of the plaintiff it is submitted that by the time the last two mentioned approaches were made there was no likelihood that the person who made the approaches was in any way related to the deceased or to either of the accused. By the time the Royal Commission was underway Mr Thurgar had been dead for some years. By the time the Royal Commission was approaching evidence relevant to the Thurgar killing both accused had long since been acquitted. And so, as a rational inference, the interest of three of the four groups or sources of the earlier threats had, so the argument runs, been eliminated. There may well have been others, but none has been suggested or specified. 13 By the time the two last mentioned approaches were made it is a rational inference that is open to the court that it is more likely than not that the person or persons who would benefit from Mr Barnett not giving evidence of the kind set out in his statement of 1 June 2000 would be, or be associated with, the police. Whether that would be an ultimate finding may depend upon other facts. And it is no doubt because evidence in trials can only be adduced piece by piece, establishing facts or seeking to establish facts step by step, that s57 was inserted into the Evidence Act, 1995. However, before I come to that section I should advert to the fact that s55 provides that evidence is relevant if it "could" rationally affect the assessment of the probability of a fact in issue in the proceedings. In the sense in which it is used in s55 "could", in my opinion means that "it is possible that it may". Read in such a way s55 has a wide ambit in relation to admissibility, which is consistent with the general policy that is to be found in Part 3 of the Evidence Act. 14 To return to s57: the determination of whether evidence adduced is relevant may depend upon the court making an additional finding of fact, or a particular finding of fact. And that, in turn, may depend upon further evidence being admitted at a later stage of the proceeding which will render such a finding open. 15 The form of s57, in my opinion, gives strength to the approach to s55 to which I have previously adverted. The scheme of ss55, 56 and 57 is to ensure that the court has before it the evidence from which it can draw correct rational conclusions. The provision in s57 that the court may find evidence to be relevant even if such ultimate relevance is subject to further evidence being admitted at a later stage of the proceeding, is an important provision intended to ensure that all evidence that may ultimately assist in coming to conclusions in relation to facts in issue is before the court. 16 In this case the combination of the reduction of the obvious possibilities concerning the shoe box warning by reference to later events moves the situation from what might be described as the wide open to the limited, and when combined with the prospect of further evidence, as contemplated by s57, I am of the opinion that the appropriate course to take is to find that the evidence is relevant subject to further evidence being admitted at a later stage of the proceedings which will make it reasonably open to the court to make a finding as to the nexus between the events to which the statement of 1 June 2000 speaks, and the facts in issue in the present case. 17 For those reasons I will admit the statement of 1 June 2000 on the basis that I have indicated. ********** -