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 Australian Law Reform Commission Interim Report on Evidence (ALRC 26) (1985) TEXTS CITED: Australian Law Reform Commission, Final Report on Evidence (ALRC 381), (1987) DA Ipp, "Must a prosecutor believe that the accused is guilty? Or, was Sir Frederick Jordan being recalcitrant?" (2005) 79 Australian Law Journal 233 S Odgers, Uniform Evidence Law, 7th ed (2006) PARTIES: Bruce Malcolm Thomas (Appellant) State of New South Wales (Respondent) FILE NUMBER(S): CA 40305 of 2007 COUNSEL: T Molomby SC, K Nomchong (Appellant) P J Saidi, A Williams (Respondent) SOLICITORS: Legal Aid Commission of New South Wales (Appellant) I V Knight, Crown Solicitor (Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20112/2006 LOWER COURT JUDICIAL OFFICER: Price J LOWER COURT DATE OF DECISION: 19 February 2007, 19 April 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Thomas v State of New South Wales [2007] NSWSC 160 Thomas v State of New South Wales [2007] NSWSC 366 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40305/07 SC 20112/06 HODGSON JA CAMPBELL JA GYLES AJA Friday 28 November 2008 Bruce Malcolm THOMAS v STATE OF NEW SOUTH WALES Judgment 1 HODGSON JA: I agree with Gyles AJA that the appeal should be dismissed with costs. 2 I take a different view from Gyles AJA on the question of admissibility before the primary judge of the transcript of Eastwood's evidence; but otherwise I agree with his reasons. 3 The primary judge held that the transcript of Eastwood's evidence was admissible pursuant to s 69 of the Evidence Act 1995, which is in the following terms: 69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) at any time was or formed part of such a record, and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question, and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind, the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). Notes. 1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of proof, and authentication, of business records. 2 Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records. 4 Business is defined as follows in Part 2 of the Dictionary of the Evidence Act: Part 2 Other expressions 1 References to businesses (1) A reference in this Act to a business includes a reference to the following: (a) a profession, calling, occupation, trade or undertaking, (b) an activity engaged in or carried on by the Crown in any of its capacities, (c) an activity engaged in or carried on by the government of a foreign country, (d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity), (e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament, (f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature. 5 I agree that the transcript forms part of the records kept for the purposes of a business (see Evidence Act Dictionary pt 2 cl 1(1)(d)); that it contains a representation recorded in it for the purposes of that business; and thus that the requirements of s 69(1) are satisfied. 6 I agree that the representation was one made by Eastwood, who had or might reasonably be supposed to have had personal knowledge of the asserted facts; and thus that the requirements of s 69(2) are satisfied. I accept that s 69(2) is not excluded by reason of s 69(3)(b): see Nye v New South Wales [2002] NSWSC 1268; (2002) 134 ACrimR 245 at [10]-[20], in which s 69(3)(a) was not considered. 7 The crucial question is whether s 69(2) is excluded by reason of s 69(3)(a). In my opinion, it is. In my opinion the representation, that is, Eastwood's assertion that he verballed the appellant and did so to assist in convicting him for the assault, was "obtained" "in connection with" "an Australian or oversees proceeding". 8 The Royal Commission was plainly a proceeding in an "Australian court", defined in the Dictionary to mean, among other things, "a person or body authorised by Australian law … to hear, receive and examine evidence". 9 The representation in question was plainly "obtained" by the Crown for the purposes of the activity it was engaged in; and it was plainly obtained "in connection with" the proceeding in question. The circumstance that the representation was made in the course of the proceedings does not indicate otherwise. 10 The alternative view would, in my opinion, be contrary to the rationale of the business records exception to the hearsay rule, which is based on the likely reliability of entries made in the ordinary course of business or government activities, when there is no reason to suspect ulterior purposes. 11 The alternative view would also mean that a transcript of evidence given in other proceedings would always be admissible in both civil and criminal proceedings, subject only to the discretion to exclude it under s 135 or 137 of the Evidence Act; since in my opinion, the proceedings of a court fall within par (d), and perhaps also par (b), of cl 1(1) of Part 2 of the Evidence Act Dictionary. This admissibility would not sit well with other statutory provisions, which closely restrict circumstances in which transcripts of evidence in other proceedings are admissible. 12 Those other provisions include s 65(3) of the Evidence Act and ss 285, 306B and 306I of the Criminal Procedure Act 1986, which are as follows: 65 Exception: criminal proceedings if maker not available ……… (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note . Section 67 imposes notice requirements relating to this subsection. ……… 285 Depositions tendered by prosecution (1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters: (a) that the deponent: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent's life, or (ii) is absent from Australia, (b) that the deposition was recorded: (i) by or in the presence of the Judge before whom it was taken, and (ii) in the presence of the accused person or during any period when the accused person (having been excused under section 72) was absent, (c) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 72) was absent when the deposition was taken and was not represented by an Australian legal practitioner. (2) The deposition: (a) must be in writing, signed by the Judge by or before whom the deposition was taken, or (b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions. (3) If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath: (a) that the record so made is a true record of the matter so deposed, and (b) that the transcript of the record is a correct transcript of that record. (4) If it appears from the deposition: (a) that it was made in the presence of the accused person, and (b) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, the deposition is taken to have been so made and the accused person, or his or her Australian legal practitioner, is taken to have had such an opportunity, unless proved to the contrary. (5) If it appears from the deposition: (a) that it was made while the accused person (having been excused under section 72) was absent, and (b) that the accused person was not represented by an Australian legal practitioner at that time, the deposition is taken to have been so made and the accused person is taken to have not been represented by an Australian legal practitioner, unless proved to the contrary. (6) In this section: Judge includes a coroner holding office under the Coroners Act 1980. 306B Admission of evidence of complainant in new trial proceedings (1) If a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant. (2) For the purposes of this Division, the original evidence of the complainant means all evidence given by the complainant in the proceedings from which the conviction arose (referred to in this Division as the original proceedings), including the evidence given by the complainant on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings. (3) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant is admissible in the new trial proceedings if: (a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor's intention to tender the record under this section, and (b) the prosecutor gives written notice to the court of the prosecutor's intention to tender the record under this section, and (c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow. (4) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant under this Division or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence. (5) The court hearing the new trial proceedings does not have any discretion to decline to admit a record of the original evidence of the complainant if it is admissible under this Division. (6) However, the court may give directions requiring a record of the original evidence of the complainant to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court. (7) In addition, a record of the original evidence of the complainant may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her Australian legal practitioner (if any). (8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence. (9) This Division extends to proceedings for a new trial ordered before the commencement of this Division, including new trial proceedings that have been commenced or partly heard. 306I Admission of evidence of complainant in new trial proceedings (1) If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant. (2) For the purposes of this Division, the original evidence of the complainant means all evidence given by the complainant in the discontinued trial (referred to in this Division as the original proceedings), including the evidence given by the complainant on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings. (3) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant is admissible in the new trial proceedings if: (a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor's intention to tender the record under this section, and (b) the prosecutor gives written notice to the court of the prosecutor's intention to tender the record under this section, and (c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow. (4) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant under this Division or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence. (5) Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant if, in the court's opinion, the accused would be unfairly disadvantaged by the admission of the record, having regard to the following: (a) the completeness of the original evidence, including whether the complainant has been cross-examined on the evidence, (b) the effect of editing any inadmissible evidence from the original evidence, (c) the availability or willingness of the complainant to attend to give further evidence and to clarify any matters relating to the original evidence, (d) the interests of justice, (e) any other matter the court thinks relevant. (6) If the court allows a record of the original evidence of the complainant to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court. (7) In addition, a record of the original evidence of the complainant may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her counsel (if any). (8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence. (9) This Division extends to proceedings for a new trial listed before the commencement of this Division, including new trial proceedings that have been commenced or partly heard. 13 It will be seen that the provisions of s 285 of the Criminal Procedure Act are less stringent than those of s 65(3) of the Evidence Act: cf Patterson v Regina [2001] NSWCCA 316. However, s 285 does impose significant limitations on the circumstances when transcripts are admissible, as do the other provisions set out above. Provisions such as these would not be necessary, and indeed would seem inappropriate, if s 69 is given the application supported by the primary judge and by Gyles AJA. 14 There could possibly be a question whether this evidence, being first hand hearsay, would be admissible under Division 2 of Pt 3.2 of the Evidence Act. Since the maker of the representation, Eastwood, was available to give evidence, the applicable provision of that Division would be s 64, which is in the following terms: Division 2 "First-hand" hearsay ……… 64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. Note . Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons. 15 Because Eastwood did give evidence, s 64(2) has no application. As regards s 64(3), the occurrence of the asserted fact was on 26 September 1986. The representation in the transcript was made nearly ten years later on 13 March 1996. The question of whether, in those circumstances, the occurrence of the asserted fact was then "fresh in the memory" of Eastwood was not considered by the primary judge; and in circumstances where the admissibility was not put on that basis, and the matter was not raised with Eastwood when he gave evidence, it would, in my opinion, not be appropriate for the Court of Appeal to find that the asserted fact was "fresh in the memory" of Eastwood and to rule that the transcript was admissible under s 64 on that basis. 16 My view that the transcript was not admissible would give further support to the conclusion that the appellant's appeal should be dismissed. However, as I have said, I agree with the other reasons given by Gyles AJA for that conclusion. 17 CAMPBELL JA: I agree with the reasons of Gyles AJA on all topics except the admissibility of the statement of Eastwood. On that topic, I agree with the reasons of Hodgson JA, but add the following remarks. 18 The essential point of difference between Gyles AJA and Hodgson JA concerns whether the representations contained in the evidence that Eastwood gave to the Royal Commission was made by him "in connection with" the proceeding constituted by the Royal Commission, within the meaning of section 69(3) Evidence Act. "In Connection With" 19 In Elkateb v Lowindi (1997) 42 NSWLR 396 at 402 Giles CJ Comm D said: "The phrase "in connection with" has on many occasions been said to be of considerable width, satisfied by a link or an association ( Commissioner for Superannuation v Miller (1985) 8 FCR 153) or a relationship ( Our Town FM Pty Ltd v Australian Broadcasting Tribunal [No 1] (1987) 16 FCR 465; Drayton v Martin (1996) 137 ALR 145) and summed-up in the phrase "having to do with": see the same cases and Nanaimo Community Hotel Ltd v Board of Referees [1945] 3 DLR 225. As with the phrase "in relation to", no doubt the context or the purpose may require that the link, association or relationship be of a particular kind, sometimes described as an appropriate or relevant relationship ( Perlman v Perlman (1984) 155 CLR 474 ; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 and O'Grady v Northern Queensland Co Ltd (1989) 169 CLR 356), but it should not be read down unless there be compelling reason to do so ( Fountain v Alexander (1982) 150 CLR 615)." 20 As appears from the judgment of Mason J (with whom Stephen J agreed) in Fountain v Alexander at 629, both the content of, and the context in which, a statutory provision containing the words "in relation to" appears can provide a "compelling reason" for reading the expression down. The same applies to a statutory provision containing the words "in connection with". In construing a statutory expression of the form "X in connection with Y" if one can see that there is a connection of some sort between X and Y, one must look to other matters, such as the context and purpose of the statutory provision, to decide whether that connection is an "appropriate or relevant" one. 21 In my respectful view, the correct approach to construction of a statutory provision containing the words "in connection with" is stated by Spigelman CJ (which whom Grove and Sully JJ agreed) in R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at [30]-[32]: " Furthermore, as the Full Court of the Federal Court has said in Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146: "The words 'in connection with' are words of wide import; and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear." The Court went on to quote with approval from the judgment of Davies J in Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491: "Expressions such as 'relating to', 'in relation to', 'in connection with' and 'in respect of' are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute. … The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear." Finally, the Full Federal Court returned to this matter in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 where the Court said: "The words 'in connection with' have been accepted as capable of describing a spectrum of relationships between things, one of which is bound up with or involved in another: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. However, as was pointed out by Sackville J in Taciak v Commission of Australian Federal Police (1995) 59 FCR 285 at 295, the question that remains in a particular case is what kind of relationship will suffice to establish the connection contemplated by the statute. That requires a 'value judgment about the range of the statute': see Pozzolanic (at 289)." The Process of Statutory Construction 22 This statement of the law illustrates how statutory construction is a particular application of the concept of the hermeneutic circle, familiar in other areas of discourse. That concept is that understanding of the parts is dependent upon understanding the larger whole, but the larger whole can only be understood on the basis of the parts, so that arriving at an understanding of any particular part involves movement to and fro between the parts and the whole. In the context of statutory interpretation, the "whole" that can influence understanding of one of the parts includes not only the entire text of the particular statute in question, but also matter such as the historical circumstances from which it sprang, and the purpose it is intended to achieve. That is because a statute is not a text that can be understood in isolation. It is a type of text that is intended to form part of a wider body of law, so the meaning of a particular statutory expression can be influenced by parts of the law that are beyond the statute. A statute is a type of text whose role is to regulate certain types of human activities, so the manner in which the relevant type of activity is carried out, and the purposes for which the statute seeks to regulate that type of activity, can also influence the meaning given to a particular statutory expression. 23 Even though ascertaining the meaning of a statutory provision involves this to and fro between the whole and the parts, it must start somewhere. A convenient starting point is to consider the provision in question by itself. Construing Section 69(3)(a) in Isolation 24 As a matter of simple construction of the words of section 69(3)(a) it is hard to think of a way in which a representation could have a closer connection with "an Australian or overseas proceeding" than by being made in the course of that proceeding. That type of connection is not a strained or unusual one. I see no oddity in the drafter of section 69(3) having made no express mention of excluding evidence given "in the course" of an Australian or overseas proceeding, when evidence given in the course of the proceeding was already comfortably within the expression "in connection with" the proceedings. Rationale of Section 69(3)(a) and Section 65(3) 25 I turn now to whether the purpose or rationale of section 69(3) affects its construction. In Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; (2005) 147 FCR 235 at [25]-[27] Lindgren J construed section 69(3)(a), saying: "Unlike its New South Wales predecessor, s 69(3)(a) does not use the formula 'made or obtained'. In order for s 69(3)(a) to apply, a person must have 'prepared' or 'obtained' the representation (not the document) in contemplation of a proceeding. It is an unusual use of language to refer to the 'preparing' of a representation, but I think that the intention is clear enough; the reference is to the person who prepared, formulated, shaped or framed the terms in which the representation is made. This will typically, perhaps always, be or include the maker of the representation. The person who 'obtains' a representation is a person who seeks the representation or procures it to be made. This person is not the maker of the representation, but may be a person who 'prepared' it. By referring to persons who prepared or obtained the representation, the legislature was attempting to encompass all those who might cause a representation to be made in the form which it takes. That it was attempting to do so is consistent with the rationale of reliability which underlies the business records exception to the hearsay rule, and the rationale of unreliability which underlies the subs (3) exception to that exception: see LRC 17, at [48], [51]; Australian Law Reform Commission's Report on Evidence (Interim) (ALRC 26) Vol 1, at [343]; Vitali v Stachnik [2001] NSWSC 303 at [12]; ALRC Discussion Paper, Review of the Uniform Evidence Acts (ALRC DP 69) at [7.240]." 26 In Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) [2008] FCA 1038; (2008) 170 FCR 9 at [8] Finn J said: "It is well accepted that the hearsay rule contained in s 69(2) is founded on the "rationale of reliability" of business records generally. The exception to that subsection is founded on a "rationale of unreliability" of representations made in the circumstances envisaged by subs (3)." 27 I would not accept that this states the totality of the rationale of section 69(2) and (3) – minimising unnecessary time, trouble and expense involved in calling live witnesses, and avoiding situations where the court is deprived of relevant information because no available live witness can depose to it from his or her own knowledge are also part of the rationale. However, I would readily accept that a very important reason for drawing the dividing line between evidence admissible by reason of section 69(2), and evidence not admissible by reason of section 69(3) was the likely reliability of evidence that fell within section 69(2) but not within section 69(3), and the risk of unreliability of evidence that fell within section 69(3). 28 Clearly, one of the effects of section 69(3)(a) would have been to make inadmissible any written proof of evidence that Eastwood might have given before giving evidence to the Royal Commission. It would be a strange conclusion if the transcript of evidence given in accordance with such a proof should be admissible. 29 Evidence before a tribunal has some significant differences to a mere proof of evidence. It is given on oath or affirmation, and the taking of the oath or affirmation, the formality and seriousness of the occasion, and (in those tribunals where it happens) knowledge that one's evidence will be subject to cross-examination, may all be significant incentives for many witnesses to try to tell the truth. Even so, it is daily experience in the courts that evidence given on oath or affirmation is rejected or found to be unreliable. The process of litigation, frequently involves a witness in telling his or her story several times out of court, and being questioned about it, and being questioned about whether the witness can say anything on other topics of relevance to the case. This has the effect that by the time the witness gives evidence in court, the evidence lacks the spontaneity and freshness that attaches to most facts recorded in business records. 30 The law of evidence contains rules that state the types of material that, as a class, are admissible or inadmissible. It also contains discretions that can result, in a particular case, in material that falls within a class of admissible evidence not ultimately being received in evidence. Section 69(2) and (3) set out rules of the former kind. Thus, their rationale must be decided by reference to the classes of documents they relate to. Evidence given in the course of a proceeding does not, as a class, have the same inherent likelihood of reliability as attaches to statements in business records. Thus, it is in accord with the rationale of section 69(3)(a) for representations contained in a transcript of evidence given in a proceeding, to fall within section 69(3)(a). 31 Considering the context in which section 65(3) occurs and the purpose of section 65(3) provides an explanation for why the drafter made express mention in section 65(3) of a representation made "in the course of" giving evidence in a proceeding. Part 3.2 Evidence Act deals with the topic of hearsay. It has three Divisions. Division 1, consisting of sections 59-61, states the hearsay rule. Division 2, consisting of sections 62-68, states the circumstances in which first-hand hearsay can be admissible. Division 3, consisting of sections 69-75, contains a miscellaneous assortment of other exceptions to the hearsay rule. 32 In Division 2, the "first-hand" hearsay that the title of the Division refers to is, in accordance with section 62, evidence of a representation that was made by a person who had personal knowledge of an asserted fact. The Division makes separate provision about the circumstances of admissibility of such hearsay depending upon whether the proceedings in which it sought to be adduced are civil or criminal, and on whether the maker of the representation is or is not available to give evidence. 33 Understandably, the circumstances in which first-hand hearsay is rendered admissible in a criminal trial are more restricted than those in which first-hand hearsay is admissible in a civil trial. 34 Section 65 is concerned with the conditions on which first-hand hearsay can be adduced if the person who made the previous representation is not available to give evidence about an asserted fact. Section 65(2) provides one set of conditions for admissibility of evidence in those circumstances, while section 65(3) provides an independent set of conditions in which such evidence might be admissible. The text of section 65(3) is set out in the judgment of Hodgson JA at [12]. 35 That a defendant in criminal proceedings should have the opportunity to cross-examine those who give evidence against him or her is an important part of our legal system's concept of a fair trial. Section 65(3) seeks to preserve, so far as possible, that element of a fair trial, in circumstances where first-hand hearsay evidence is given concerning a representation made by a person who is not available to give evidence in the trial. The effect of section 65(3) is that such evidence is not automatically rendered inadmissible, if the defendant in the proceeding in which first-hand hearsay is sought to be adduced has either actually cross-examined the person who made the representation concerning that representation, or had a reasonable opportunity to do so. Necessarily, there will have been such cross-examination, or opportunity for cross-examination, only if the previous representation was made in the course of giving evidence in an earlier proceeding. In this way, the reference to "in the course of giving evidence" in section 65(3) is an essential part of implementing the policy that gives rise to section 65(3). 36 There is no corresponding need to make express reference to "in the course of" a proceeding, to implement the policy of section 69(3). Help From History? 37 I now turn to consider whether the history of section 69(3) casts any light upon the disputed phrase. 38 Before the enactment of the Evidence Act 1995, admissibility of business records was governed in New South Wales by Part IIC (section 14CD-14CV) Evidence Act 1898. After section 14CE had made general provision for a statement of fact in a business record to be admissible, section 14CF(1) provided: "Notwithstanding section 14CE, a statement made or obtained for the purpose of, or in contemplation of, a legal proceeding or any other legal proceeding arising out of the same or substantially the same facts is not admissible." 39 In 1978 the Evidence Act 1905 (Cth) had a new Part IIIA inserted in it. Though modelled on the New South Wales legislation it had some differences. In particular, its analogue of section 14CF(1) was wider than section 14CF(1): "7C(1) A statement is not admissible under section 7B in a proceeding if it was made or obtained for the purpose of, or in contemplation of, any judicial or administrative proceeding." 40 It is not hard to see a reason for the Commonwealth provision dropping the requirement that the proceeding arise out of the same or substantially the same facts. The process of litigation gives rise to many documents that contain representations that it would be unsafe to rely upon. The risk of unreliability arises from the circumstance that the representation has been made for the purpose of or in contemplation of a legal proceeding, whether or not that legal proceeding is one that arises out of the same, or substantially the same, facts as the proceeding in which the representation is sought to be tendered. 41 The Evidence Act 1995 arose from recommendations of the Australian Law Reform Commission. It published an Interim Report on Evidence (ALRC 26) in 1985, and a Final Report on Evidence (ALRC 38) in 1987. 42 The draft legislation contained in ALRC 26 provided in section 62(1) for a representation in business records to be excluded from the hearsay rule. Section 62(2) the provided an exception to that exclusion: "Subsection (1) does not apply if the representation was prepared or obtained for the purpose of conducting, or in contemplation of or in connection with, a legal or administrative proceeding." 43 In para [707] of ALRC 26 the Commission, in explaining its draft recommendation, said that one of the safeguards proposed for the party against whom evidence was led was: · "Pending Civil Proceedings. It is necessary to limit the application of the proposal to avoid it being used to admit notes of information and rumour recorded in the solicitor's file or to circumvent the firsthand hearsay proposals – for example, tendering a proof of evidence in the solicitor's file or statements in the business' files. It is proposed that representations made for the purpose of or in contemplation of proceedings should not be admissible under the business records proposal." 44 That explains why a provision was included that was analogous to the former section 14CF(1) so far as "purpose of, or in contemplation of, a proceeding" was concerned. 45 In the summary of recommendations, para 12(c)(i) the Commission said that its recommendations: "… are based on existing Commonwealth legislation. Representations made in connection with legal proceedings, or in the course of the investigation of a criminal offence, should not be admissible under this provision." 46 That is as close as the Report comes to a direct explanation of the reason why the exclusion of representations made "in connection with" a proceeding was included in the text of the draft Bill, and why the requirement that the proceedings "arise out of the same or substantially the same facts" was dropped from section 14CF(1). 47 The final report of the Australian Law Reform Commission on Evidence (ALRC 38) gave detailed consideration only to the modifications it proposed to the recommendation in the interim report. No modification was proposed concerning the exception to the admissibility of business records that had previously been contained in clause 62(2), so no further consideration was given to it. 48 In these circumstances, even though these historical matters cast no fresh light on the meaning of section 69(3)(a), there is nothing in them to detract from the conclusion I have reached on other grounds. Conclusion 49 Applying the words of section 69(3) to the present facts, it was Eastwood and the Counsel who examined him who "prepared or obtained" the representation, and the representation was prepared or obtained in connection with the Royal Commission because it was part of the evidence before the Commissioner and, one would infer, given for the purpose of advancing the investigative task the Commission was charged with. Thus it falls within section 69(3)(a). 50 I agree with the orders proposed by Gyles AJA. 51 GYLES AJA: This case concerns events that occurred in Parramatta Gaol in 1986 leading to the conviction of the appellant for two serious criminal offences. The convictions were set aside when one of the investigating police officers gave evidence to the Royal Commission into the NSW Police Service ("Police Royal Commission") that he had "verballed" the appellant. The appellant sued the State of New South Wales, the respondent, for damages for malicious prosecution. The case was dismissed as the appellant did not establish the absence of reasonable and probable cause for the prosecution (Thomas v State of New South Wales [2007] NSWSC 366; (2007) Aust Torts Reports 81-890). The appellant appeals from that dismissal. The respondent has filed a Notice of Contention raising a number of issues including a question as to the manner in which the evidence given by the police officer to the Police Royal Commission was dealt with. FACTS 52 On 14 August 1986 the appellant was a prisoner in Parramatta Gaol. On that day, Ronald Paul Gollan ("Gollan"), another inmate of the gaol, was attacked in his cell and received injuries including a serious head injury. At about 2pm that day, a prison officer was approached by the appellant and another inmate, Roy William Nicholson ("Nicholson"). The appellant said to him, "You better check the bloke in 210 ['B'] cell he seems to have a bloody nose, we picked him up and put him on his bed". 53 The officer, as well as another officer who had been paged, went to cell 210 'B' and found Gollan lying on the bottom bunk with blood coming from his nose and mouth. He appeared to be unconscious but he was breathing. An ambulance was called and conveyed Gollan to Westmead District Hospital. There was blood on the blanket, on the floor and on the cupboard. There were also blood stains on the wall of the cell in the vicinity of the head of the bed which appeared to be similar to a splash pattern. Gollan was not expected to live. A police investigation commenced on 14 August. 54 Gollan's cellmate was Brian John Bell ("Bell"), who was interviewed by the Acting Superintendent and Assistant Superintendent of the gaol. Bell was interviewed by Detectives Hough and Hannay on 15 August. In his statement to the prison officials Bell said that a prisoner, Mitchell Winefield ("Winefield"), had been with him and Gollan during the course of the morning. Gollan was called away to a visit. Another prisoner (later identified as the appellant) entered the room and said to him, "When your mate comes back to the cell, make yourself scarce". Bell then went down to the prison authorities to seek protective custody. Whilst he was waiting, a person came up to him and said, "looks like you'll be on your own tonight, your cell-mate just got a hiding – that's what he gets for bashing women". 55 Bell signed a record of interview with police on 27 August 1986. That interview was consistent with the earlier statement. He made it clear that the second conversation was not with the same prisoner as was the first conversation. He also said that Gollan and Winefield knew each other and that a message had been given to Gollan by Winefield's wife for Gollan to give to Winefield when Gollan got to gaol. 56 On 29 August 1986 Bell identified out of eight photographs a photograph of the appellant as the person who visited him in the cell on 14 August. 57 Winefield was interviewed at Parramatta Police Station on 27 August 1986. He travelled to the police station with Bell on that day. He confirmed that he had known Gollan for about 16 years, went to school with him and grew up with him. He said that Gollan had told him that his wife had got "pinched" at Blacktown. He denied all knowledge of the bashing prior to his being told of it by a prison officer at muster, and denied that any other prisoner had entered Gollan's cell whilst he was there or had spoken to Bell and himself. This version was consistent with the version he had given to the detectives on the day after the incident. 58 On 28 August 1986 Detectives Hannay and Hough interviewed the appellant at Parramatta Police Station. The police running sheet entry was as follows: "RUNNING SHEET RE GOLLAN WOUNDING AT PARRAMATTA GAOL. INTERVIEW OF BRUCE THOMAS, BORN 19.9.47 ON REMAND FOR ROBBERY WHILST ARMED. About 10.00am this date the prisoner THOMAS was removed from the Gaol and conveyed to Parramatta Police Station. He stated that about 11.30am on the 14 August, 1986 he was in the gym with Gavin HONNERY, Charles AMOS and Roy NICHOLSON and worked out there for two hours. He stated that they all left together. HONNERY and AMOS went to the third landing in 'B' Wing. THOMAS and NICHOLSON were on their way back to NICHOLSONS cell, cell 211, for a cup of tea. THOMAS stated he saw GOLLAN lying on the cell floor with his head pointing towards the cell door and there was a large amount of congealed blood under his head. He was gargling and urinating. THOMAS informed NICHOLSON and NICHOLSON walked to the far end of the cell and THOMAS checked GOLLAN'S breathing and opened his mouth. THOMAS then lifted GOLLAN by the shoulders, NICHOLSON assisted by lifting him by the feet and placed him on the bed with his head facing out. THOMAS then left with NICHOLSON and went down to the Prison Officers office downstairs and informed them that the prisoner in cell 210 needed assistance. He further stated that he had heard that GOLLAN was 'King Hit' with a fist two or three times and had his head jumped on. Further stated that he thought that GOLLAN was the correct target of the assault for bashing prisoners wives and girlfriends. THOMAS was shown photographs of the blood splatter on the wall next to the pillow on the bottom bunk where he agreed he had placed his head and would not give any explanation as to how this blood got there. THOMAS stated that the Police should not waste their time looking for the offender in 'A' or 'B' wing. He indicated that he knew the identity of the offender but was not prepared to say who was responsible. Because of his prior Gaol record, THOMAS feels that he is the main suspect for this assault. G.K. Hough Det. Sen. Const." 59 Detectives Snell and Brown interviewed Winefield again on 25 September 1986. The signed record of interview on this occasion gave a completely different version. The essence of it was as follows: "A. When Ron first got to the gaol he told me about my wife Kim being punched at Blacktown, so I asked him if she got bail and things like that. He told me she did from there I asked him if he had a t.v. He told me he didn't so I seen the wing officer and asked to put him on application for a gaol t.v. At the time the wing officer was too busy to do it and told us to come back later. Just after that I seen about Ronnie and he said that he would fix it up. Anyway Ronnie got called to the Reception room to have his photograph taken and he got a gaol t.v. while he was over there then. He was then moved to B wing. I helped him move. He was called for a visit. I just kept setting up his tele for him, I needed a piece of wire for the aerial so I went upstairs where I seen Thommo then he told me to tell the rockspider not to be there. He wanted me to tell him. I didn't want to tell him so he came down with me and told him himself. I just finished setting up his t.v. up and then I went back to my wing and just waited around downstairs. I seen him walk back across the yard so I followed him and Roy Nichoholson went to find Thommo then I went up to his cell. I asked him how did his visit go and that. Shortly afterwards Thommo came in and closed the door behind him. I [punched] Ronnie around the head, it would have been a few times, [it's hard] to think how many times I hit him. I left him unconscious on the floor. I left the cell, went upstairs to Thommo's cell. Told me to wash my face. So I did it. I was looking from the top landing down into his cell. His cell door was ajar and I could see his legs and he wasn't moving. Thommo said to me don't worry [about it]. We will go down and see if he is alright and tell the screws about him. He told me to piss off and get out of the [wing] so I left the [wing]. Q.16 What happened then? A. I went to my house, my cell, I was in a panic because he wasn't moving when I left him, so I went back over to B wing about twenty minutes later. I was walking behind Roy Nicholson going up the stairs. I seen the officers at Ronnie's cell. They told [us] to piss off out of the wing. So I went and they locked the wing. Q.17 What happened then? A. I went back to my cell because it wasn't long before muster. I got me plate and went downstairs and stood out the front of the wing, that A wing. I was watching what was going on in B wing. I could see the Doctor going back and forwards. He made a phone call in A wing. Later on I seen Thommo and Roy and they told me [what] they done to him after I had left him. Thommo told me that he give him first aid by punching him around the face and he was [wiping] the blood off on a towel. He said they grabbed him and through him up against the wall. They told me he was pissing himself. Just after that we had to go and get out tea and get locked up. I was in my cell and I didn't sleep that night. The next day they told me again and I said 'Why did you do that to him?' Thommo said, 'If you do a job you've got to do it properly'. I asked him if he was still in his cell when they went back to have their tea to be locked up. They said no he must have been taken out the back door. That's about it I haven't talked to him much since then, because he keeps bringing it up all the time." 60 At 1.15pm on 26 September 1986 Detectives Snell and Brown interviewed Nicholson. An unsigned record of interview related an admission by Nicholson that he and Thomas had gone to Gollan's cell after Gollan had been assaulted by Winefield, that Gollan was still breathing and that he and Thomas had grabbed him and rammed his head into the wall to finish him. 61 On the same day at about 2pm Detectives Hannay and Eastwood interviewed the appellant. The substance of the unsigned record of interview, as related in the statement of Detective Eastwood, was as follows: "2. About 2pm on the 26th September, 1986, in the Parramatta Detectives Office I had a conversation with Detective HANNAY. Shortly after I went to an interview room of the Parramatta Police Station and I was present when Detective HANNAY said to the defendant Bruce THOMAS, 'My name is Detective HANNAY and this is Detective EASTWOOD. What is your full name?' He said, 'Bruce Malcolm THOMAS'. Detective HANNAY said, 'I have been informed that you were involved in the assault on a prisoner at Parramatta Gaol on the 14 August, 1986 named Ronald GOLLAN. Would you care to comment on that?' He said, 'The cunt deserved it you don't give women a hard time.' Detective HANNAY said, 'Would you care to tell me what involvement you had in the assault. I want you to understand that you are not obliged to say anything unless you so desire as anything that you do say will be used in evidence. Do you understand that?' He said, 'Yeah, I understand. Mitch had some words with him about his woman. Mitch went to see him in 210 to give it to him and I went with him and closed the cell.' Detective HANNAY said, 'Who is Mitch?'. He said, 'Mitchell WINEFIELD.' Detective HANNAY said, 'What do you mean by, "Mitch went to give it to him".' He said, 'Mitch wanted to punch Christ out of him. He should have killed the cunt.' Detective HANNAY said, 'Why did WINEFIELD want to assault GOLLAN'? He said, 'You don't give women problems, Mitch knew GOLLAN saw his lady. He just got square.' Detective HANNAY said, 'Would you tell me what happened prior to GOLLAN being assaulted?' He said 'I was with Mitch and Nico. I told Mitch to tell the rock spider to fuck off out of 210. He wouldn't tell him so I told him myself. Mitch stayed in the cell till the cunt came back. He walked past me and I followed him in.' Detective HANNAY said, 'Who is Nico?' He said, 'Roy NICHOLSON'.' Detective HANNAY said, 'Where was NICHOLSON when you were in the cell?' He said, 'Outside.' Detective HANNAY said, 'What happened then?' He said, 'Mitch give it to him in the head. The cunt wouldn't shut up. Mitch knocked him out and he fell near the bed. We went to my cell. Mitch shit himself about it. Me and Nico went back the arse was coughing blood so we smashed his head. Fuck him he's better dead.' Detective HANNAY said, 'Did you intend to kill him?' He said, 'Yeah, he should be dead.' Detective HANNAY said, 'What happened when you were in the cell?.' He said, 'We picked him up, give it to him and threw him on the bed.' Detective HANNAY said, 'Do you wish to read these notes of our conversation?' He said, 'No, it's not going to make any difference.' Detective HANNAY said, 'Do you wish to sign the notes?' He said, 'You're kidding.' Detective HANNAY said, 'Do you wish to make a handwritten statement?' He said, 'No'. Detective HANNAY said, 'You will be charged with attempting to murder Ronald GOLLAN, do you understand that?' He said, 'Yes.'" 62 That afternoon Winefield, Nicholson and the appellant were taken to Granville Police Station and charged by Detective Hannay with: (a) feloniously wounding Gollan with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW); (b) inflicting grievous bodily harm on Gollan contrary to s 35 of the Crimes Act . On 27 October the s 27 charge was amended in respect of the appellant from " feloniously did wound " to " did inflict grievous bodily harm upon ". 63 The three co-accused were presented for committal on 9 January 1987. All three pleaded not guilty. Each of the appellant and Winefield were represented. Nicholson was not. Evidence was led from Detectives Snell and Brown as to the record of interview of 25 September with Winefield and of the admissions by Nicholson on 26 September. Evidence was led from Detectives Hannay and Eastwood of the admissions by the appellant on 26 September. It was put to Detectives Snell and Brown, who interviewed Winefield on 25 September, that Winefield had declined the interview, and that he only participated after he had been threatened and assaulted by Snell and Brown. Nicholson put to Snell that he had refused to comment on the case. Detectives Hannay and Eastwood were cross-examined on behalf of the appellant to suggest that the admissions he was alleged to have made on 26 September were not made. The appellant and Nicholson were committed for trial on both charges. Winefield was committed for trial only in relation to the s 35 charge. The magistrate took the view that the prosecution evidence was not capable of satisfying a jury beyond reasonable doubt as to the intent to murder in his case. 64 Following the committal for trial the prosecution was taken over by the Director of Public Prosecutions. The trial of the three accused was fixed for hearing on Monday, 16 May 1988. On that morning Winefield was sentenced on the charge of assault occasioning actual bodily harm following a plea of guilty to that charge on Friday, 13 May 1988. The appellant and Nicholson were then arraigned and indicted as follows: "CHARGE 1: For that you, Bruce Malcolm Thomas on 14 August 1986 at Parramatta in the State of New South [W]ales did assault Ronald Paul [Gollan] and then beat and ill-treat the said Ronald Paul [Gollan] thereby then occasioning him actual bodily harm. … CHARGE 2: Also that Bruce Malcolm Thomas and Roy William Nicholson on 14 August 1986 at Parramatta in the State of New South Wales did cause grievous bodily harm to Ronald Paul [Gollan] with intent to murder the said Ronald Paul [Gollan]. … CHARGE 3: You further stand charged that on 14 August 1986 at Parramatta in the State of New South Wales did maliciously inflict grievous bodily harm upon Ronald Paul [Gollan] with intent thereby to do grievous bodily harm to the said Ronald Paul [Gollan]." . 65 Detectives Hannay and Eastwood gave evidence at the trial of the admission by the appellant on 26 September 1986 in accordance with the evidence given at the committal hearing, which effectively admitted not only participation in a savage attack but also an intention to kill. Winefield gave evidence. He had made a further statement on 16 May 1988. As it happened his evidence did not come up to proof in some important respects. 66 On 20 May 1988 the plaintiff was found guilty by the jury of the first and second charges. The third charge had been treated as an alternative to the second charge. The first charge was described by the sentencing judge as aiding and abetting the assault occasioning actual bodily harm committed by Winefield. On that charge the appellant was sentenced to penal servitude for four years. On the second charge he was sentenced to penal servitude for 15 years with a non-parole period of 11 years. The sentences were to be served concurrently and to date from 8 October 1987. 67 On 13 March 1996 Eastwood, then still a serving detective, gave evidence to the Police Royal Commission including the following: "Q. If document 1711747 might be brought up on the screen. I'm going to direct your attention now, sir, to the investigation of a man by the name of Bruce Malcolm Thomas. Do you recollect being involved in an inquiry concerning an allegation that Mr Thomas had assaulted a person? A. Yes. Q. What, briefly, were the circumstances surrounding that matter? A. It happened at – him and couple of other fellows bashed a fellow in gaol, a fellow named Gollan. Q. A fellow named Gollan? A. Yeah. Q. Were you and Detective Hannay the officers conducting inquiries into that matter? A. Some of the – two of the officers were conducting inquiries in that matter. There was a number of police involved in that matter. Myself and Detective Hannay interviewed Bruce Thomas at the Parramatta police station. Q. Did you verbal Mr Thomas? A. Yes. Q. Was there any question of you receiving any payment in connection with your inquiries? A. No. Q. What was the reason that you verballed Mr Thomas? A. Well, to assist in convicting him for the assault." 68 On 31 October 1997 the appellant petitioned pursuant to s 474C(1)(b) of the Crimes Act on the basis of Detective Eastwood's evidence to the Police Royal Commission. On 13 April 1999 the Court of Criminal Appeal ordered that the appellant's appeal be allowed, the convictions against him be quashed and verdicts of acquittal be entered (R v Thomas [1999] NSWCCA 68). PROCEEDINGS 69 The appellant then sued the respondent for malicious prosecution claiming general damages, aggravated and exemplary damages, compensation for deprivation of liberty and past and future economic loss. The respondent admitted vicarious liability for the actions of Detectives Hannay and Eastwood and it was the only defendant. 70 The plaintiff's case consisted of evidence from him, a number of documents and the transcript of Eastwood's evidence before the Police Royal Commission. The documents tendered included virtually all the relevant prison and police records and records of the committal hearing and criminal trial. Admission of the Police Royal Commission transcript was dealt with in an interlocutory judgment (Thomas v State of New South Wales [2007] NSWSC 160). One of the complications was that the whereabouts of Eastwood were not known, he having been given protection. In the course of the interlocutory judgment his Honour said, when dealing with an argument that admission of the evidence should be rejected pursuant to s 135 of the Evidence Act 1995 (NSW): "51 It is not open to the State to merely rely on the attempts by the plaintiff to find Mr Eastwood. No evidence has been adduced as to the efforts made by the State to ascertain the whereabouts of the person the State wishes to cross-examine. This does not represent a reversal of the onus of proof as counsel for the State suggests, but a consideration of fairness. In any event, the State bears the onus of establishing the danger of unfair prejudice. The State is well placed, it seems, to take reasonable steps to find Mr Eastwood. To echo the submission made on behalf of the State, it is not a difficult exercise to ring up a witness protection authority to make the necessary inquiries. 52 Neither s 17(2) of the 1923 Act, nor the unserved cross-claim, prohibits the State ascertaining the whereabouts of Mr Eastwood and calling him in the State's case. A certificate under s 128 of the [ Evidence Act ] could be given if required to the witness. I indicate to the State I am prepared to grant leave to the State to issue a subpoena requiring Mr Eastwood to give evidence in the State's own case. I am also prepared to entertain a submission that the witness be permitted to be examined by leading questions." 71 The respondent's case consisted of oral evidence from former police officers – Hough, Hannay, Brown and Snell – and from Bell and Winefield, together with some documents. 72 Eastwood was also called, in somewhat unusual circumstances. Being in protection he gave evidence pursuant to subpoena, the service of which was arranged by the authorities responsible for protection. He gave evidence by video link from an undisclosed location to a closed court. His formal details were adduced by the trial judge. He was then questioned by counsel for the appellant, counsel for the respondent and then counsel for the appellant again. It will be necessary to return to his evidence later. TRIAL JUDGMENT 73 The institution of the criminal proceedings, and the termination of those proceedings favourably to the appellant, were effectively conceded. 74 The first issue decided was identified with the heading "Was the plaintiff verballed?". It was common ground that in the absence of a finding that the admissions said to have been made by the appellant on 26 September 1986 were fabricated, neither the absence of reasonable and probable cause nor malice could be established. Eastwood's evidence to the Royal Commission was admitted. Eastwood's oral evidence and the evidence of Hannay were considered in the light of the surrounding circumstances and it was held that the alleged oral admissions by the appellant were not made, but were fabricated by Eastwood and Hannay. 75 His Honour then went on to consider the issue of absence of reasonable and probable cause. His approach was to identify the material, absent the fabricated oral admissions, which was available to Hannay for consideration when deciding to commence the prosecution. This was done on the basis that Hannay was a member of the police investigation team led by Snell and that the police officers shared information. His Honour considered that material under the following headings – "Information from Brian Bell"; "The first interview"; "Mitchell Winefield"; "Observation of cell 210 'B'"; "Gollan's injuries"; "Information from informers"; and "The interview with Nicholson". His Honour considered that the Winefield record of interview of 25 September 1986 was appropriately to be considered as he accepted that Winefield had told Detective Snell that he was willing to give evidence in accordance with the record of interview on the day of the interview. His Honour also considered certain deficiencies in the police investigation that were relied upon, particularly the failure to interview prisoners who had been identified by the appellant as supporting an alibi. 76 His Honour proceeded upon the basis that the plaintiff had to prove either that Hannay did not honestly form the view that there was a proper case for prosecution or that Hannay formed that view on an insufficient basis. His Honour found that Snell, Brown, Eastwood and Hannay had met on the night of 25 September 1986, after Winefield had been interviewed, and were of the view that there was sufficient evidence to substantiate the charges that were laid the next day by Hannay. That decision was made irrespective of what might be said during the second interview. His Honour was satisfied that Hannay honestly held the view on the material then available that there was a proper case for the plaintiff to be prosecuted for both charges and that on the next day that belief was fortified by the alleged confession made by Nicholson. The fabrication of the confession was made to ensure that the plaintiff would be convicted, not because he had not honestly formed the view that there was a proper case for prosecution. His Honour took the view that Hannay's knowledge of the fabricated admissions was not knowledge or belief in some fact that was inconsistent with guilt – rather, it was knowledge that evidence had been falsified to add to the credible material previously obtained in the course of the police investigation. 77 So far as the objective aspect of the issue was concerned, his Honour identified the material which would be admissible in criminal proceedings to prove the charges, consisting at that stage of the plaintiff's first interview; the evidence of prison officers Winship and Jenkins; the evidence of Bell; the observations of blood in cell 210 'B'; the head injuries suffered by Gollan; and the evidence of Winefield. His Honour concluded: "163 Direct evidence was provided by Winefield of the plaintiff's alleged participation in the initial assault upon Gollan. There was no direct evidence to prove the charge contrary to s 27 of the Crimes Act 1900. The case depended upon circumstantial evidence. 164 Viewed in combination the evidence was capable of satisfying a properly instructed jury beyond a reasonable doubt that the plaintiff in concert with Nicholson had rammed Gollan's head with considerable force into the cell wall with the intention to kill him. The available evidence taken as a whole was capable of giving rise to no other rational inference than the inference that the plaintiff had committed the offences contrary to ss 27 and 35 of the Crimes Act 1900. Objectively assessed the material before Hannay warranted the charges being laid. There was a strong and credible case against the plaintiff." It was held that the plaintiff had not established the absence of reasonable and probable cause. 78 His Honour went on to hold that there was malice. The appeal from that finding depends upon whether the finding of fabrication of the evidence of the admissions stands. 79 It is worth noting that the experienced common law judge who presided over the original criminal trial said in the course of his sentence remarks: "Whatever may perhaps be thought of the evidence of the two police officers concerning the verbal admissions alleged to have been made by the prisoner at a time when the police did not have the benefit of Winefield's evidence to establish a case against him …" 80 In the course of his report to the Court of Criminal Appeal as contemplated by s 11 of the Criminal Appeal Act 1912 (NSW), that judge said: "I clearly recall that my own reaction at the time to the evidence of the police officers that the applicant had admitted an intention to kill was that the evidence was false." ( R v Thomas [1999] NSWCCA 68 at [22]) APPEAL 81 The charge under s 27 includes the element of intent to murder. The appellant contends that the only evidence of that intent was the fabricated confession. The appellant contends that the trial judge erred in finding that the witness Winefield told Snell that he was willing to give evidence on 25 September 1986 and that the trial judge erred generally in assessing the credibility of the witness Winefield by failing to take various matters into account. 82 The appellant also argues that the finding that Hannay held an honest belief that there was a proper case for the prosecution of both charges was wrong and, in effect, inconsistent with the finding that he gave untruthful evidence as to the fabricated admission. 83 The respondent by Notice of Contention claims that the trial judge erred in admitting the transcript of Eastwood's evidence before the Police Royal Commission and challenges the finding that the record of interview of the appellant was fabricated. Particular criticisms are made as to the evidence of Eastwood. 84 The respondent also relies upon matters which the trial judge did not need to consider in view of the conclusion which led to the dismissal of the action. In particular it was pleaded that the proceedings were statute barred and instituted out of time and that the appellant would be entitled, even if successful, to either no damages or nominal damages only. 85 It was also contended that in considering the material available to Hannay so as to warrant the charges being laid, the trial judge was in error in restricting himself to admissible evidence and that the material should have taken into account the information provided by the co-offender, Nicholson. CONSIDERATION 86 The logical starting point is to decide the respondent's contention that the finding that the admissions of the appellant were fabricated was wrong. The first question is the respondent's contention that the interlocutory decision to admit Eastwood's transcript was wrong. The principal argument was that the evidence was excluded by s 69(3)(a) of the Evidence Act. This argument flows from the fact that the transcript was tendered as a business record pursuant to s 69(1) and (2). It was conceded by the respondent that the requirements of those subsections were met, with the exception of the argument as to "representation" noted below. There was a similar concession at trial. It is neither necessary nor appropriate to give independent consideration to those requirements. 87 In my opinion, the evidence was not excluded by s 69(3)(a). The subsection would have operated upon a previous representation in a statement prepared or obtained from Eastwood prior to leading of evidence in the Police Royal Commission: s 69(3) relates to pending or contemplated proceedings. However, here, the representation was made in the course of giving evidence in the proceeding, not prepared or obtained for the purpose of conducting the proceeding or in contemplation of or in connection with it. The provenance and rationale of the exception is explained by Odgers, Uniform Evidence Law, 7th ed (2006) at para 1.3.2880 and by Lindgren J in Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357; 147 FCR 235 at [24] – [27]. 88 As Barrett J said in Vitali v Stachnik [2001] NSWSC 303 at [12]: "The purpose of the exclusion is, as I see it, to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings." 89 That rationale was cited by Hamilton J in Lewis v Nortex Pty Ltd (in Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 at [4], and followed by this passage: "(5) This links with what Barrett J has said to be the policy of the section in Vitali v Stachnik supra at [12]: "The purpose of the exclusion is, as I see it, to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings." (6) The point, as I apprehend it, is that the contemplation or existence of any proceedings may lead even persons of good intent to make purely self serving statements that may, without the exclusory provisions of subs (3), be admissible through the scheme of s 69. From this natural tendency to make self serving statements springs the policy that statements made in those circumstances ought be excluded from the ambit of s 69 which is, in general terms, generous towards the admission of statements contained in documents that meet the criteria of the section. (7) It is not, as Mr Motbey has suggested to me, a requirement of subs (3) that a conclusion be reached that the creator of the document had the purpose of making self serving statements, whether true or false. It is, rather, that the possibility, bearing in mind human nature, to make self serving statements in such circumstances, leads the Act to exclude all statements made in such circumstances as a precaution against purely, and particularly false, self serving statements being taken into evidence." Evidence given on oath is in a different category. (See also Finn J in Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) [2008] FCA 1038; 170 FCR 9 at [8] – [15].) 90 The drafting of this exclusion is to be compared with the drafting of s 65, particularly subsections 65(3)-(6) that expressly deal with previous representations made in the course of giving evidence. If it had been intended that s 69(3) should deal with that topic it can be assumed that similar express provisions would have been included. 91 Of course, s 65 and s 69 each deal with a different head of exemption from the hearsay rule. The substantive exemption from the hearsay rule that is dealt with by s 69(1) and (2) is that for business records. Subsection 69(3) is an exclusion from that exemption. It is conceded for present purposes that the transcript is a business record, as are any formalities associated with tendering the transcript. This is not the occasion to deal with any issue of principle as to the reception of previous representations given in evidence apart from the narrow issue as to the exclusion provided for by s 69(3). Any difficulty that may be perceived with admitting a transcript into evidence as a business record should not be addressed by a strained construction of s 69(3). 92 The respondent also submitted that the evidence did not include any relevant "representation" or "asserted fact" as required by s 69(1) and (2). It was bad in form. It would not be admissible without spelling out the underlying facts. The trial judge properly rejected that argument. It was held that the statement that the witness had verballed the appellant could only be understood to mean that he was representing that he had fabricated the then known oral confession by the appellant: [2007] NSWSC 160 at [9]-[12]. 93 The respondent also contended that the evidence should have been excluded pursuant to the provisions of s 135 of the Evidence Act. That section conferred a discretion upon the trial judge. He declined to exercise the discretion and gave reasons for doing so. There is no basis for concluding that the trial judge misunderstood the nature of the discretion or that the exercise of it miscarried. The criticisms of the nature of the evidence and how it was elicited went to weight, and were considered by the trial judge when he came to decide the merits of the case. In the event, Eastwood was called and cross-examined on behalf of the respondent. 94 The respondent contends that even if Eastwood's evidence before the Police Royal Commission is taken into account, the trial judge was in error in finding that the admissions were fabricated. The trial judge had the advantage of seeing the evidence of Eastwood, Hannay and the appellant on that issue, of considering how that issue fitted in with the balance of the case as it unfolded before him and received comprehensive submissions from counsel. The trial judge gave detailed reasons for his conclusion. 95 None of the criticisms advanced by counsel for the respondent demonstrate that the trial judge misused his advantage, misdirected himself in any way, overlooked some vital piece of evidence or acted otherwise such as to permit this Court to intervene in accordance with well-established principles. 96 Indeed, the inherent probabilities are strongly in accordance with the trial judge's conclusion. On any view, on 25 September 1986, after the interview of Winefield, if there was a case against the appellant of intent to murder, it was not strong. It depended upon the evidence of a person implicated in the assault, indeed the only person with any motive for the assault. The significance of the oral admissions was that they would bolster the case and make the committal of the appellant virtually certain on both charges. The possibility that a hardened and experienced criminal, having had some weeks to consider his position since the assault, would blurt out an oral admission or confession in the way recorded stretches credulity. REASONABLE AND PROBABLE CAUSE? 97 It is now appropriate to consider the appellant's attack upon the finding that there was no absence of reasonable and probable cause. 98 The appellant has a heavy burden in setting aside the subjective aspect of the finding – that is, that the plaintiff had not established that Hannay did not honestly form the view that there was a proper basis for prosecution. Counsel for the appellant submitted that the finding that Hannay had lied about the admissions at committal, at the criminal trial and in this case, was not given any or any appropriate weight by the trial judge in considering the other issues. That submission has initial attraction but loses force when it is appreciated that the trial judge's reasoning was that Hannay believed that the appellant was guilty of the charges including the most serious of them, and that that belief was the motivation for firming up the evidence by fabricating admissions in order to ensure a conviction for what he believed had occurred. 99 There was a considerable body of material pointing towards the appellant as the person, or one of the people, who had caused horrific injuries to Gollan by causing his head to strike the wall of the cell with extreme force. The evidence from Bell was sufficient to establish a guilty connection. It was also the appellant who had reported the matter to the prison authorities. That in itself is neutral but did place him in the position of proximity. The first interview with the appellant on 28 August 1986, although exculpatory, places him in the cell handling Gollan. Winefield's record of interview was direct evidence of the appellant taking part in the actual assault. If Hannay believed Winefield, then he believed that the appellant was an active participant in the assault which led to the head injuries. 100 Although there is much to be said for the view that Winefield's evidence should be treated with caution, Hannay and the other officers involved in the investigation were experienced detectives and it was open to them to accept his version of events. The trial judge was in a good position to judge the veracity of Hannay in that respect. 101 An independent attack was made upon the trial judge's acceptance of the evidence that Winefield had told the police officers at the time of the record of interview that he would plead guilty and give evidence against the others. There is some force in the criticisms made of that particular finding in the light of the overall events. Winefield was charged with both offences and he pleaded not guilty to both. This meant that at the committal his record of interview would become known to the other accused. He maintained his plea of not guilty until the Friday before the Monday on which the trial was due to commence. He had, through his solicitor, alleged at committal that he had been subject to threats and brutality in relation to the record of interview and that he did not make the relevant admissions. Further, the record of interview between Snell and Winefield as to a potential change of plea close to the date of the trial makes no reference to any earlier arrangement. No earlier arrangement is referred to in any of the police records, including running sheets. However, the finding by the trial judge was made after an assessment of the evidence given by the various participants, including Winefield. If there were an arrangement or understanding, it could only have been informal and not binding or enforceable. The disclosure of it would have jeopardised the admissibility of the record of interview because it may well have been seen as an inducement of some sort. If an understanding were reached, it would hardly be disclosed. 102 The elements of the tort of malicious prosecution, and in particular the absence of reasonable and probable cause, were discussed in some detail by the High Court in A v New South Wales [2007] HCA 10; (2007) 230 CLR 500. The traditional formulation starts with the proposition that the plaintiff must establish that the prosecutor did not believe in the guilt of the accused of the crime charged. There has been some controversy over that element (cf DA Ipp, "Must a prosecutor believe that the accused is guilty? Or, was Sir Frederick Jordan being recalcitrant?" (2005) 79 Australian Law Journal 233). The majority decision in the judgment of the High Court explains how the subjective element needs to be adapted to a situation where the prosecutor has no independent first hand knowledge of the facts. In those circumstances, some modification of the necessity to believe in guilt is required – particularly in the case of those well removed from direct involvement such as officers of the Director of Public Prosecutions or senior police officers if they are called upon to make a final decision as to whether to charge or not. It was said that the question would be: "whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the process of the criminal law in motion." [80] That is a lesser subjective standard than belief in guilt. The High Court did not consider the case of a prosecutor who believes in the guilt of the accused. 103 In my view the position remains that if the prosecutor believes in the truth of the case leading to a belief in guilt, then the subjective element is met. Put more precisely, in those circumstances the plaintiff cannot prove absence of the necessary subjective element. That is the case here. The officers concerned here were investigating police who were closely in touch with the matter. It has been held that there was a belief in guilt in this case. 104 The reasonableness of the belief then comes into play. Was the trial judge in error in finding that the appellant had not established that there was not a reasonable basis for the belief in guilt, or, as that might now be reframed, a reasonable basis for setting the processes of the criminal law in motion? That requires an identification of the material properly to be taken into account on that issue. There is a question as to whether that material is limited to that which is admissible in evidence at trial and limited to that which will certainly be available at trial. 105 The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate's decision as to committal for trial or a trial judge's ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules. (See Lister v Perryman (1870) LR 4 HL 521 per Lord Westbury at 538, Lord Colonsay at 540 and 542; Hicks v Faulkner (1878) 8 QBD 167 at 173-4; Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 at 202-3; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469-471). 106 In the present case the question turns substantially upon the use that could properly be made of the information provided by Winefield. It is clear, of course, that the fabricated admissions could not be taken into account. The nature of the injuries and the state of the cell were such that the assault had gone well beyond a fight or a bashing with fists. The nature and location of the bloodstains and the injuries were consistent with Gollan's head having been driven into the wall with great force. It was certainly indicative of an intention to cause grievous bodily harm and would also provide evidence consistent with an intent to murder. By 25 September 1986 there was material available which implicated both Winefield and the appellant in the injuries to Gollan, principally through the evidence of Bell. However, it was not sufficient to establish a case. 107 It is submitted that the record of interview with Winefield did not provide a basis for the charge of intent to murder against the appellant. There was certainly no express allegation of an admission to that effect by the appellant. However, that is taking too analytical a view of the effect of the evidence. If accepted, the intervention by the appellant and Nicholson was quite gratuitous and implicated them directly in throwing Gollan against the wall in order to "do the job properly". To punch a person who was unconscious and then throw him head first into a wall was quite sufficient to found the charge of intent to murder. 108 So much is consistent with view of Hunt J, who in his sentencing remarks said: "the inferences from the nature of the injuries which Gollan suffered … are eloquent of such an intention [to kill] on the part of the prisoner." The Court of Criminal Appeal said: "If the jury found that the appellant caused the injuries to which Dr Buskell referred in the evidence extracted above, then the evidence was compelling that those injuries were inflicted either with intent to kill or with intent to inflict grievous bodily harm." (R v Thomas [1999] NSWCCA 68 at [24]) 109 The conviction of the appellant was set aside by the Court of Criminal Appeal, not because a jury could not have convicted but rather because there was a significant possibility that, absent the seemingly credible evidence of the police officers, the jury may have entertained a reasonable doubt as to the appellant's guilt on both charges and accordingly that there had been a miscarriage of justice. A new trial was not ordered as there would be obvious difficulties associated with a retrial so long after the event. The Court of Criminal Appeal decision was in 1999 and related to events in 1986. 110 Counsel for the appellant has naturally relied upon the fact that Hannay could not have been certain that Winefield would in fact give evidence in accordance with his record of interview. At that point he was a potential accused. However, the fact that Winefield had signed the record of interview indicated that he was prepared to distance himself from the other two potential accused. The reason is not too hard to find. On any basis he was involved and was the only person with any motive to do Gollan harm. On his version there was no risk of him being committed on the charge of attempted murder in the absence of other evidence. It was obvious that there was great scope for decisions to be made in due course as to how to handle the matter. That was particularly so because of the assurance of co-operation having been given by Winefield at the time of the record of interview, as found by the trial judge. 111 The events as they actually occurred bore out the reasonableness of that basis of proceeding. Winefield did give evidence. If there had been no fabricated admissions, then decisions would have to have been taken by Winefield and the police prior to committal rather than prior to trial. The argument that this would not have been done to preserve the safety of Winefield has no substance. As I have said, his statement implicating the other two accused was in evidence at the committal. 112 Counsel for the appellant also addressed a number of issues which raise questions about the credibility of Winefield's account of events. He also pointed to features of Winefield's antecedents that would demonstrate the likelihood of his having taken a more active part than he said. It may be that the trial judge's consideration of Winefield's position was not as extensive as might have been the case. But that is not the test. No doubt it could be expected that, as with any co-participant in an enterprise of this sort, his evidence would be heavily scrutinised, but that is not a reason for not laying charges which are open and letting the system take its course. 113 In my opinion Winefield's signed record of interview, together with the other material, formed a proper basis for the finding by the trial judge that, objectively, there was a proper basis for the charges. There is no need to consider the more difficult question as to whether the alleged admissions by Nicholson were properly to be taken into account in deciding whether to charge Thomas. 114 The appeal against the finding that the absence of reasonable probable cause had not been established fails. 115 The appeal should be dismissed with costs. ********** 18/09/2009 - Reference to Evidence Act 1975 corrected to Evidence Act 1995. - Paragraph(s) 38, line one 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.