Beckett v State of New South Wales [2014] NSWSC 1112

Supreme Court New South Wales

Medium Neutral Citation: Beckett v State of New South Wales [2014] NSWSC 1112 Hearing dates: 15 August 2014 (argument) Decision date: 18 August 2014 Before: Harrison J Decision: Reject the tender of Mr Morgan's reports with the exception of the section concerned with the application for and execution of search warrants Catchwords: EVIDENCE - expert report - expertise - Evidence Act 1995 s 79 - whether expert possessed specialised knowledge based on training, study or experience - whether expert report otherwise concerned with matters of relevance to the proceedings Legislation Cited: Evidence Act 1995 Cases Cited: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Beckett v New South Wales [2013] HCA 17 Honeysett v The Queen [2014] HCA 29 Category: Procedural and other rulings Parties: Roseanne Beckett (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: P E Blacket SC & N Broadbent (Plaintiff) J E Maconachie QC, P Saidi & A N Williams (Defendant) Solicitors: Turner Freeman (Plaintiff) I V Knight, Crown Solicitor (Defendant) File Number(s): 2008/289411 Publication restriction: Nil

Judgment 1HIS HONOUR: Ms Beckett proposes to tender a report dated 21 July 2014, and a supplementary report dated 11 August 2015 [sic, 2014], prepared by Graeme Morgan APM, LL.B, LL.M, M.Bus. Mr Morgan is a retired police officer, having served with the New South Wales Police Service or Police Force for 38 years, rising to the rank of Assistant Commissioner. Since early 2010, Mr Morgan has been an Adjunct Professor at the Centre for Policing Intelligence and Counter-Terrorism at Macquarie University. He was awarded the Australian Police Medal in 1997. 2Ms Beckett has brought proceedings claiming damages for malicious prosecution, following events that led to her conviction and imprisonment for ten years on several charges including solicit to murder. Following a series of appeals and enquiries, some of her convictions were quashed and a new trial ordered. This did not occur until Ms Beckett had served the effective non-parole period of her sentence. A nolle prosequi was ultimately entered with respect to several of the charges, meaning that these charges concluded favourably to her: see Beckett v New South Wales [2013] HCA 17. 3Former Detective Sergeant Peter Thomas was the prosecutor. Ms Beckett's case proceeds upon the fundamental footing that Mr Thomas falsely and fraudulently caused her to be charged with the several offences, using a combination of techniques including intimidation of witnesses, causing witnesses to give false testimony, fabricating or planting physical evidence so as to inculpate Ms Beckett and similar things. These allegations have called into question the propriety of Mr Thomas's conduct in his then capacity as a sworn officer of the New South Wales Police Service. Unsurprisingly in that context, Ms Beckett asserts that the rules and regulations governing police practice and behaviour at the time were flagrantly disregarded and flaunted by Mr Thomas, and that a demonstration of the nature and extent of his misbehaviour informs the case that Ms Beckett seeks to establish against the defendant. 4The defendant opposes the tender of Mr Morgan's reports on several bases. These are considered below. 5It is instructive at this stage to record what it is that a plaintiff, such as Ms Beckett, is required to establish in a case of malicious prosecution. An authoritative pronouncement of the law is to be found in A v New South Wales [2007] HCA 10; (2007) 230 CLR 500. At [1], the Court said this: "[1] ... For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause...". 6In the present proceedings, only the third and fourth elements of the tort remain in contention. 7Central to the issues that are still in dispute is a determination of what was before the prosecutor at the relevant time. The High Court referred to that concept at two locations in the judgment as follows: "[56] Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. ... [71] ... If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff." 8In the present case, Ms Beckett contends not only that Mr Thomas in fact knew where the truth lay concerning the matters with which she had been charged, but also that he knew or believed some fact that was inconsistent with her guilt. In either case, that is because Ms Beckett alleges that Mr Thomas wholly constructed the cases against her, or manipulated existing facts arising out of events in her life in a way that tended to show that she had committed offences when Mr Thomas well knew that she had not. 9It is in that setting that Ms Beckett promotes the tender of Mr Morgan's reports as proving or tending to prove a fact in issue in her case, and in which the defendant correspondingly opposes it.