Reported Decision : 58 NSWLR 152 New South Wales Supreme Court CITATION : Nye v State of New South Wales & ors [2003] NSWSC 610 HEARING DATE(S) : 2/7/03 JUDGMENT DATE : 3 July 2003 JUDGMENT OF : O'Keefe J DECISION : Leave to reopen case to adduce evidence granted. CATCHWORDS : Evidence - Practice and procedure - Application to reopen case - Application to recall witness - Tender of written statement simpliciter by person does not make such person a witness - Words and phrases - Witness - Recall - Calling a witness - Evidence Act dictionary - Inherent jurisdiction - Interests of justice LEGISLATION CITED : Evidence Act 1995 - s 46, Div's 2, 3, 4, 5 Supreme Court Act 1970 - ss 22, 23 Reid v Howard (1995) 184 CLR 1 CASES CITED : State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) (1999) 160 ALR 588 Tringali v Stewardson, Stubbs and Collette Pty Ltd (1966) 66 SR 335 Garry Raymond Nye State of New South Wales Wayne Popplewell PARTIES : Wayne Desmond Gordon Peter James Hawley David John Barnett Director of Public Prosecutions FILE NUMBER(S) : SC 21458/96 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) - 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'Keefe J 3 July 2003 21458/96 Garry Raymond Nye v State of New South Wales & ors JUDGMENT Introduction 1 On the morning of 2 July 2003, in the sixty third day of the case, senior counsel for the plaintiff sought leave to recall a witness, Neil Bryson Laing (Mr Laing), in order to adduce oral evidence in relation to the date on which a statement was taken from him at Lane Cove Police Station in connection with the murder of Roy Thurgar on 20 May 1991. His statement was in the nature of alibi evidence for the accused, Garry Raymond Nye (Mr Nye). His statement and that of his wife were taken by a detective, whose name Mr. Laing cannot recall. However the plaintiff through his counsel suggests it was the defendant Gordon. The purpose of the additional evidence is to deal with a submission that had been put in the course of the address on behalf of the defendants that the probabilities were that such statement was taken at a date earlier than 17 September 1991, probably late July or early August 1991. 2 The previous evidence from Mr Laing consisted of a written statement made on 3 September 2002 (Exhibit V). It was tendered on behalf of the plaintiff on 13 September 2002, having previously been marked for identification on 12 September 2000. 3 The application was made after evidence had closed, the primary closing address by counsel for the defendants had been delivered, and when counsel for the plaintiff was in the sixth day of his address. Senior counsel for the defendants objected to the leave being granted. 4 The application was put on two bases. The first was s 46 of the Evidence Act 1995. The second was the inherent jurisdiction of the Court as preserved by the operation of ss 22 and 23 of the Supreme Court Act 1970. 5 It was submitted on behalf of the plaintiff that the time at which the statement was taken from Mr Laing had a significant bearing on whether it had been taken by the defendant Gordon. This, it was further submitted, could be of considerable significance in the case, as the statement from Mr Laing (Exhibit V) includes a remark alleged to have been made by the officer who took the statement that was said on behalf of the plantiff to be dismissive of the alibi evidence provided by Mr Laing in favour of Mr Nye, the plaintiff. Such statement was, the argument proceeded, indicative of an attitude on the part of the taker of the statement that was strongly suggestive of a frame of mind to the effect that he was not really concerned with the facts, but rather with maintaining a charge of murder against Mr Nye. 6 The evidence establishes that, prior to the time of the tender of his statement Mr Laing had undergone surgery for cancer and that, although he was recovering from such surgery, he was not well enough to come to court in order to give evidence at that time. Senior counsel for the defendants requested that it be placed on record that the defendants "would have liked to have cross-examined" Mr Laing (T 669), and stated that whilst objection was taken to certain of the paragraphs in the statement, namely paragraphs 18-20, no objection was taken to the residue. In the course of argument he said: "…we do not see this evidence as being of such profound significance in the case as to warrant a bedside court being convened, which is something, as I apprehend the situation, we could, in effect, insist upon, but it involves a lot of effort and it doesn't seem necessary." 7 In his statement (Exhibit V) Mr Laing said: "18. During the course of that interview, I said to the detective words to the effect: 'Gary could not have committed the murder because he was at my place on that day.' 19. In response to this, the detective said to me words to the effect: 'He's only a crim.'" 8 Mr Laing's statement continued: "20. I cannot remember the name of the detective who interviewed me. He was a tall man of about 6 feet in height, and was solidly built. I think he was well over 40 years old, about late forties in age. 21. During the interview, I told the detective that I was a member of North Bondi Surf Club, and the detective told me that he was a member of Freshwater Surf Club." 9 The defendant Gordon is a tall man, about 6 feet in height. He is solidly built. He was not, however, in his late forties in the latter half of 1991. He was born on 11 September 1957 and was thus 33 at the date of arrest of the plaintiff, 34 as from 11 September 1991. 10 The defendant Gordon was unable to recall whether he had taken a statement from Mr and Mrs Laing at Lane Cove Police Station or at all. However, as he revealed in the course of his evidence, he had been a member of the Freshwater Surf Lifesaving Club, terminating such membership perhaps as late as 1991. He negated that any other officer involved in the investigation of the Thurgar murder was a member of the Freshwater Surf Lifesaving Club. 11 Mr Laing's statement was admitted unconditionally as to paragraphs 1 to 17 and 20 to 23, and conditionally pursuant to s 57 of the Evidence Act 1995 as to paragraphs 18 and 19. 12 In the course of his closing address on behalf of the defendants, senior counsel placed reliance on: (1) The duty book of the defendant Gordon for the period from 20 May 1991 to 17 September 1991. It was submitted that it did not show any visit by Gordon to Lane Cove Police Station in the period to which the entries in the duty book relate, nor did it contain any reference to Mr or Mrs Laing. In this regard it should be noted that unfortunately, like the original statements of Mr and Mrs Laing that were taken by police at the Lane Cove Police Station and the running sheets in which they should have been recorded, the duty books of the defendant Gordon for the relevant periods subsequent to 17 September 1991 are missing. (2) The fact that in the period between the date of the murder of Roy Thurgar on 20 May 1991, and the arrest and charging of the plaintiff on 24 July 1991 and probably his early appearances in court up to September 1991, the defendant Gordon was involved in managerial duties in relation to a number of significant matters of which the Thurgar murder was but one, rather than the actual taking of statements from witnesses. Hence it was improbable that he would have gone to Lane Cove and taken statements from Mr and Mrs Laing in such period. (3) The age of the officer taking the statement, as stated by Mr Laing, being more advanced than that of the defendant Gordon at the relevant time. 13 Statements had been taken from alibi witnesses who were not part of the Nye family or extended family, namely Mr and Mrs Crombie and Miss Rockwell. Two of these were taken on 31 July 1991, the other in August 1991. None of these statements was taken by the defendant Gordon. It appears that all were taken by the defendant Barnett, who had been assigned by Gordon for that purpose. 14 The statements of the alibi witnesses who were members of the Nye family, namely Mr. Wayne Nye and Miss Debbie Nye, were taken at Lane Cove Police Station in April 1992. One appears to have been taken by a detective Sullivan; the other by the defendant Gordon. It would thus seem that he was at the Lane Cove Police Station for the purpose of recording alibi evidence in April 1992. This was at a time when the committal proceedings in respect of Mr Nye had concluded. Mr and Mrs Laing are the parents of Mrs Debbie Nye. 15 In the course of a careful and detailed address, senior counsel for the defendant submitted that the statements by Mr and Mrs Laing must have been taken in late July or early August 1991 at about the time the alibi evidence of the Crombies and Ms Rockwell was recorded. In this period, the duty book of the defendant Gordon in fact makes no reference to his travelling to Lane Cove Police Station or to his interviewing any of the alibi witnesses. Furthermore, his diary for the period late July and early August shows that he was engaged in managerial duties, that he was involved in matters of some significance in addition to the Thurgar murder, and that he was interstate or in the country for a good part of the time. As a consequence, it was strongly pressed on behalf of the defendants that the officer who made the remark alleged in Mr Laing's statement could not have been the defendant Gordon. In this regard, it was submitted that, if made by an officer other than the defendant Gordon, there was no evidence that it was made with Gordon's approval, or that he knew about it and acquiesced in it. Accordingly it was submitted that the relevant remark could not be attributed to him. 16 It is against this background that the plaintiff seeks to call, or recall (as it was put) Mr Laing, it now being apparent that the date on which the statements were taken from him and his wife could be important. This is a state of affairs that is quite different from that which seems to have been accepted on both sides of the record when the document was tendered. Senior counsel for the defendants had then said that he did not see the evidence as warranting the convening of a bedside court and that it lacked "profound significance". Senior counsel for the plaintiff has now argued that the impact and importance of the evidence was not apparent until it was so heavily stressed by senior counsel for the defendants in the course of his primary closing address. Source of Power (a) Statutory 17 Section 46 of the Evidence Act 1995 provides that: "1. The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and: (a) It contradicts evidence about the matter given by the witness in examination in chief; or (b) the witness could have given evidence about the matter in examination in chief." 18 It was submitted on behalf of the plaintiff that s 46 is apt to cover a situation in which the evidence of the particular witness consisted of a written statement simpliciter, ie, in respect of which there was no oral supplementation or verification. 19 Divisions 2, 3, 4 and 5 of Part 2.1 of the Evidence Act 1995 (the Act) deal with a wide range of matters concerning witnesses and the giving and receiving of evidence: the swearing of witnesses (Division 2, ss 21-25), the rules about dealing with witnesses (Division 3, ss 26-36), the form of examination in chief and re-examination (Division 4, ss 37-39), cross-examination and other associated matters (Division 5, ss 40-46). Part 2.2 deals with documents. 20 The word "witness" is defined in Part 1 of the Dictionary appended to the Act as follows: "Witness includes the meaning given in clause 7 of Part 2 of this Dictionary." 21 Clause 7 of Part 2 merely states that a reference to a witness in the Act includes a reference to a/the "party giving evidence". It is thus necessary to determine whether the phrase "to recall a witness to give evidence" as it is used in s 46(1) is apt to include the calling of a person whose evidence has been in the form of a written statement, not being an affidavit or a statement of the kind provided for in Division 2 of Part 4.6 of the Act. 22 Section 21 of the Act requires that a witness in a proceeding must either take an oath or make an affirmation (s 21(1)). This suggests that the witness is a person who is present, either in person or by some recognised means, eg via video-link, in order to do so. Section 22 requires a person to take an oath or make an affirmation before acting as an interpreter in a proceeding (s 22(1)). This also implies the presence in an accepted manner of the person who is to act as interpreter. Section 23 provides that a person "who is to be a witness or act as an interpreter in a proceeding" has a choice as to whether to take an oath or make an affirmation (s 23(1)). By s 23(2), an obligation is cast on the court to inform the witness or interpreter that he or she has the relevant choice. This again implies the presence of the person so as to be appropriately informed and to exercise the right. Similar considerations arise under s 26(a), since it involves questions to, and answers by, the persons described as "witnesses". Sections 27 and 28 carry like implications. The provisions of s 30 relating to deaf and mute witnesses are perhaps even more cogent as indicating that a witness is a person who is present in an appropriate way in the court. So too, for example, do the provisions of s 37. The provisions of s 37(3) in my opinion are at odds with the submission made on behalf of the plaintiff in the present case. So too are the provisions of ss 38 and 40. 23 From the foregoing I conclude that, as the word is used in Divisions 2, 3, 4 and 5 of Part 2.1 of the Act, a "witness" is a person who is called to give oral evidence and who is either present in the court in which the proceedings are being conducted or is linked to such court in a way recognised by the court, for example, by video-link. 24 The relevant operative phrase in s 46 is "to recall a witness". Even if, contrary to the conclusion to which I have come in paragraph 23 above that a person whose evidence has been in the form of a written statement simpliciter could not be described as a witness within the meaning of s 46, I do not think that it is apt to describe the calling of such person for the purposes of giving oral evidence for the first time as the "recall" of such person. There has been no prior calling of the person as a witness. There cannot therefore be a recalling in such circumstances. The provisions of Part 2.1 of the Act that deal with the calling of a witness, for example s 38 (unfavourable witness) and s 40 (witness called in error), make it quite clear that the concept of "calling" does not include the tendering of a statement of evidence by such a person (ie one who is not present in an appropriate way before the court), subject perhaps to the provisions of Division 2 of Part 4.6 of the Act. 25 In the present case the submission that the bringing into the court of Mr Laing to give evidence is a recalling of him is not well founded and is rejected. 26 Furthermore, the contents of Mr Laing's statement are not "evidence … given by the witness in examination in chief" (italics added) as required by s 46 (1). The concept of "examination in chief" involves oral questioning. That is the general law. It is also what s 37 contemplates. 27 For the foregoing reasons I am of opinion that the first basis on which the application to call Mr Laing is supported fails. (b) Inherent Jurisdiction 28 In addition to its specific statutory jurisdictions, a superior court of record has an inherent jurisdiction. The Supreme Court of New South Wales, as a superior court of record, has such a jurisdiction. The contrary is unarguable. Such jurisdiction has been said to be wide and incapable of being confined to closed categories. (Reid v Howard (1995) 184 CLR 1 at 16–17 per Toohey, Gaudron, McHugh and Gummow JJ; Tringali v Stewardson, Stubbs and Collette Pty Ltd (1966) 66 SR 335 at 344 per Wallace P, Jacobs and Asprey JJA). It is a jurisdiction that is exercisable in a situation in which the interests of justice call for its exercise. 29 In the present case, there is power in the court to grant the leave that has been sought. It is a power that involves the exercise of a discretion. However, it is not a "power … at large" (Reid v Howard, supra at 16). Before exercising the power in favour of an application, the court must be satisfied that the interests of justice will be better served by granting the application than by refusing it. Analysis 30 In making a determination it is necessary to bear in mind the time at which the application is made and that in the present case it comes very late indeed in the case. Whilst this is not determinative it is a factor of significance. Secondly, the question of prejudice, actual or potential, is important to the making of the determination called for. So too is the consideration as to whether or not any actual or potential prejudice to an opposing party could be met by appropriate orders as to costs and otherwise. The effect on the length of the case and on the court's list is also material. 31 Another factor which is material to the exercise of discretion is the circumstances in and background against which the application is made. As was frankly conceded by senior counsel for the defendants, cases may arise where there would be little doubt that the discretionary power would be exercised in favour of the application to reopen. He instanced a person whose evidence was significant to a case but who had absented himself from the jurisdiction and could thus not be called during the course of the evidence. After the conclusion of the evidence such person returned to the jurisdiction and indicated that he had seen the error of his ways and was prepared to give evidence. 32 In a sense, the present case is analogous to the example given by senior counsel for the defendants. Although Mr Laing did not absent himself from the jurisdiction, he asked that he not be required to give oral evidence because of the state of his health. This was acceded to by senior counsel for the defendants – although he recorded that he would like to have cross-examined Mr Laing. Just as the witness instanced by senior counsel for the defendants later indicated his preferences to give evidence because of a change - in his case a change of heart - so too has Mr Laing indicated his preparedness to give evidence because of a change - in his case a change for the better in his state of health. 33 If the evidence now sought to be called were of little significance, the possible costs, inconvenience and other consequences of reopening the case and calling the evidence may not warrant the exercise of the discretion in favour of the application. However that is not the situation. The situation is that none of the parties appreciated the significance of the date on which Mr and Mrs Laing's statements were taken at the time Mr Laing's statement (Exhibit V) was tendered. That has now changed. In the course of the address by senior counsel for the defendants, the significance of such date became manifest. If the statement was made in July/August 1991, it can be strongly argued that it was improbable that it was taken by the defendant Gordon. In this regard, his duty book for the period 20 May 1991 to 17 September 1991 would be likely to be of importance (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) (1999) 160 ALR 588). In such event, the evidence as to the attitude displayed by the taker of the statement (as is submitted on behalf of the plaintiffs) may not seemingly be able to be attributed to the defendant Gordon. 34 If, however, the statement was taken at a later date, for example, at or about the time at which the statements by the members of the Nye family, Mr Wayne Nye and Mrs Debbie Nye, were taken, namely April 1992, then the duty books referred to in paragraph 12 would be of no assistance in relation to the probabilities as to the identity of the officer referred to in paragraph 19 of Mr Laing's statement. Furthermore, the fact that the defendant Gordon did take at least one alibi evidence statement in the first half of 1992 and at the Lane Cove Police Station, could be significant in relation to the identification of the officer who is said to have made the remark referred to by Mr Laing in his written statement. 35 In opposing the application, senior counsel for the defendants argued that it involved two separate matters: the first being an application to re-open the case; the second being an application to call a witness who had not previously been called. He dealt with the applications together and raised the following considerations: (1) That the material in support of the application was scanty. It was submitted that the court had been told no more than that it was anticipated that Mr Laing would be able to deal further with the question of the time at which his statement was taken. That is correct. However, when senior counsel for the plaintiff sought to expand on the evidence that it was anticipated Mr Laing would give, senior counsel for the defendants objected, and shut him off. Before this occurred, however, the indication was that Mr Laing's evidence would be to the effect that it was "in the heat of the year" (interrupted). (2) The timing of the application. It was pointed out that Mr Laing's statement had been tendered on 13 September 2002. Since that date the plaintiff's case had been closed (informally in November 2002 and formally in April 2003). After that, the defendants had gone into evidence, the case for the defendants had been closed, the defendants' primary closing address had been completed, and the address on behalf of the plaintiff had proceeded for some days. It was further submitted that the fact that the defendant Gordon had been a member of the Freshwater Surf Lifesaving Club was revealed in evidence on 7 May 2003, and there was therefore an eight week delay between that fact becoming known and the present application. The fact that the application comes so late in the day is material, indeed highly material, to the exercise of the discretion that would be involved in acceding to the plaintiff's application. However the authorities make it clear that whilst timing is a material factor, it is not determinative. The overall consideration is how the interests of justice will be best served. Although the evidence has closed and addresses have proceeded, no specific matter of prejudice was advanced in opposition to the re-opening and calling of Mr Laing being permitted at such a late stage. There is no suggestion that the defendant Gordon is unavailable. There is no suggestion that any documents that would have been available had the application been made at an earlier date are no longer available. The only matters of prejudice may be those of delay, costs consequent on delay and the possible interference with the listing arrangements of the court – although none of these considerations was advanced on behalf of the defendants. Mr Laing's evidence concerns a discrete issue and is limited in its scope. It is therefore likely to be short. The time taken in dealing with the evidence is not likely to be great. The costs involved will, as a consequence, be quite limited, and no more perhaps than would have been the case had Mr Laing been able to be called when his statement was tendered, or earlier this year before the plaintiff's case was closed. These considerations militate in favour of granting the application. They also apply to the listing arrangements in the court, and with the same result. (3) The evidence from Mr Laing is unlikely to be fully persuasive because the witness is elderly, has been severely ill, and will be asked to give his recollection of events that occurred some 12 years ago. The precise evidence that Mr Laing would give is not known, although the general topic is – and that general topic could be of real significance in the case. One way of testing the evidence could be to take it on the voir dire, however considerations such as the time, cost, and the like would operate equally in respect of taking the evidence on the voir dire as they would in respect of taking the evidence as evidence in the trial. The specific matters concerning lapse of time, illness and the like go to the weight of the evidence and cannot be finally determined until the evidence is known. 36 I have had regard to the matters raised by senior counsel for the defendants and to the other considerations referred to above that are material to the discretion to exercise the power. In particular when regard is had on the one hand to the bases of objection advanced on behalf of the defendants, and to the absence of any actual or suggested prejudice that would accrue to the defendants should the application be acceded to, and on the other hand to the possible significance of the evidence in the plaintiff's case, to the fact that the application has been prompted by a change in circumstances, both forensic and physical, and to the potential prejudice to the plaintiff should the evidence that is now available not be put before the Court, I am of opinion that the interests of justice would be better served by allowing the plaintiff to re-open his case and to adduce the evidence than to refuse the applications. This should be on the basis that the defendants are given the right to re-open their cases and, should they wish to do so, adduce such further evidence in relation to the discrete issue to which Mr Laing's oral evidence will be directed as is seen to be appropriate and that the question of costs be reserved. ********** Last Modified: 07/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.