NSW Caselaw
Reported Decision: 74 NSWLR 34
New South Wales Court of Appeal
CITATION: Thomas v State of New South Wales [2008] NSWCA 316 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 10 September 2008
JUDGMENT DATE: 28 November 2008
JUDGMENT OF: Hodgson JA at 1; Campbell JA at 17; Gyles AJA at 51
DECISION: Appeal dismissed with costs.
CATCHWORDS: TORTS - malicious prosecution - absence of reasonable and probable cause for prosecution - where evidence given by investigating police officer to Police Royal Commission that his evidence that the appellant had made admissions demonstrating guilt was fabricated - nature of subjective belief required from prosecutor concerning case to be prosecuted - whether reasonable basis for prosecutor's belief - whether material capable of forming reasonable basis limited to that admissible in evidence EVIDENCE - rule against hearsay - business records exception - exclusions from exception - whether statement made in the course of evidence before Police Royal Commission excluded from exception as a "representation" "obtained" "in connection with" "an Australian proceeding" - general discretion to exclude evidence - whether discretion should have been exercised to exclude evidence of statement
Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 LEGISLATION CITED: Evidence Act 1995 (NSW) Evidence Act 1898 Evidence Act 1975 Evidence Act 1905 (Cth)
CATEGORY: Principal judgment
A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; (2005) 147 FCR 235 Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) [2008] FCA 1038; (2008) 170 FCR 9 Birchmeier v Rockdale Council (1935) 51 WN (NSW) 201 Elkateb v Lowindi (1997) 42 NSWLR 396 Fountain v Alexander (1982) 150 CLR 615 Hicks v Faulkner (1878) 8 QBD 167 Lewis v Nortex Pty Ltd (in Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 CASES CITED: Lister v Perryman (1870) LR 4 HL 521 Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 Nye v New South Wales [2002] NSWSC 1268; (2002) 134 ACrimR 245 Patterson v Regina [2001] NSWCCA 316 R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 R v Thomas [1999] NSWCCA 68 Thomas v State of New South Wales [2007] NSWSC 366; (2007) Aust Torts Reports 81-890 Thomas v State of New South Wales [2007] NSWSC 160 Vitali v Stachnik [2001] NSWSC 303
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