Nye v State of New South Wales & ors [2002] NSWSC 1269

New South Wales Supreme Court

CITATION : Nye v State of New South Wales & ors [2002] NSWSC 1269 FILE NUMBER(S) : SC 21458/96 HEARING DATE(S) : 21/10/2002, 23/10/2002 JUDGMENT DATE : 1 November 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 - Expert - Experience - Expert evidence - Expression of opinion by a senior detective in relation to investigative methods and quality of evidence - Royal Commission transcript - Business record - Evidence admitted LEGISLATION CITED : Evidence Act 1995: ss 69, 129, 135(a) Zanatta v McCleary (1976) 1 NSWLR 230 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 CASES CITED : Lockyer v The Queen (1996) 89 A Crim R 457 Trobridge v Hardy (1955) 94 CLR 147 Wilson v State of New South Wales (2001) 53 NSWLR 407 DECISION : The passages from the transcript of evidence objected to admitted .

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

O'Keefe J

1 November 2002

21458/96 Nye v State of New South Wales & ors

JUDGMENT 1 CORAM: Senior Counsel for the plaintiff has pressed the tender of extracts from the transcript of the evidence given by Detective Inspector J F Wilson before the Royal Commission conducted by Wood J into the New South Wales Police Service. The relevant passages were given in evidence on 24 October 1996 and were as follows: "Q: A critical aspect police could check, would be, you would accept would you not, that if it was perfectly plain upon investigation that that storage unit never held any hash and couldn't have held such hash, there was a huge hole immediately in the case? A: Yes. Q: Similarly, if there were problems in its transportation back to Sydney, that is, if it was a critical aspect of Shakespeare's account and that the cannabis actually got back to Sydney and ended up in Thurgar's laundromat and then was pinched by him -- A: I am not aware of this, sir. Q: If that was the story, and yet upon investigation it proved absolutely impossible for Thurgar to – I'm sorry, for Shakespeare to have got that cannabis back to Sydney for all kinds of reasons, including the problems with transport, then that throws a huge hole again in his case? A: Yes. Q: And dealing with a simple matter such as the inability of this hash to have been held in storage in Queensland, immediately you have a problem? A: Yes, sir, I'd agree with that. Q: Isn't that the kind of thing that properly trained, dedicated investigators who had a true motive at heart would go and check before putting up the nonsense they put up in this particular case? A: I'd have to agree with that, sir, yes." (T 3327) 2 It has already been determined that the transcript of the evidence given by Detective Inspector Wilson is a business record for the purposes of s 69 of the Evidence Act 1995 (the Act), and that its reception into evidence is not precluded by s 69(3). Senior Counsel for the defendants has objected to the admission of the above passages on the basis that they fall within the ambit of the discretion to refuse admission conferred by s 135 of the Act. It was submitted that the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to the defendants and in any event might be misleading. 3 In support of this submission the following factors were relied upon: