Beckett v State of New South Wales [2014] NSWSC 1164

Supreme Court New South Wales

Medium Neutral Citation: Beckett v State of New South Wales [2014] NSWSC 1164 Hearing dates: 20 August 2014 (argument) Decision date: 22 August 2014 Before: Harrison J Decision: Admit the evidence given by Ms Bracamonte in this Court before me on 18 August 2014 contained in the First Schedule and the transcript of the recorded conversation between her and Mr Thomas on 31 May 1989 contained in the Second Schedule. Catchwords: EVIDENCE - tendency evidence - Evidence Act 1995 s 97 - significant probative value - whether evidence unfairly prejudicial Legislation Cited: Evidence Act 1995 Cases Cited: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 Robinson v Goodman [2013] FCA 893 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 served a notice upon the defendant under s 97 of the Evidence Act 1995 dated 15 May 2014 in the following terms: "Notice is hereby given that the plaintiff, Roseanne Beckett, presently intends to adduce evidence of 'tendency', pursuant to the tendency rule in subsection 97(1) of the Evidence Act 1995. That is, evidence of the character, reputation, conduct or tendency that a person has or had, to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind. 1. The person whose tendency is the subject of the evidence sought to be adduced is Peter Thomas. 2. The tendencies sought to be proved are Peter Thomas's tendencies to act in the following particular ways, namely: 2.1 to misstate the strength of evidence against a suspect; 2.2 to incite or pressure others to fabricate their evidence in order to strengthen the case against a suspect; 2.3 to threaten others with the improper exercise of his police powers; 2.4 to act in excess of his powers as a police officer in order to intimidate others; and 2.5 to initiate proceedings against a suspect without reasonable cause. 3. Pursuant to clause 5(2)(b), Evidence Regulation 2010, particulars are: 3.1 In May 1989, in executing a search warrant of Ramon and Christa Bracamonte's house at Flat 2, 34 Allens Parade in Lennox Head, in the presence of Ramon Bracamonte and Crista Bracamonte, Detective Sergeant Tutt, Detective Grant Connelly, Detective Robert Manitta and Senior Constable Wayne Magann: 3.1.1 ransacked the premises; and 3.1.2 strip searched Christa Bracamonte without a reasonable basis for doing so. 3.2 At about 10.30am on or about 31 May 1989, at Byron Bay Police Station, in the presence of Christa Bracamonte and Detective Grant Connelly: 3.2.1 misstated the strength of the evidence against Christa Bracamonte and Ramon Bracamonte; 3.2.2 encouraged Christa Bracamonte to fabricate evidence against Ramon Bracamonte in exchange for immunity from prosecution; and 3.2.3 threatened Christa Bracamonte with the improper exercise of his power as a police officer. 3.3 The address of Christa Bracamonte, so far as it is presently known is Shop 1, 1269 Pacifica Highway, Turramurra in New South Wales. 3.4 The addresses of Detective Sergeant Tutt, Detective Grant Connelly, Detective Manitta and Senior Constable Magann are not presently known." 2Section 97 provides as follows: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 3The defendant complained faintly about the reasonableness of the notice that was given. It would from my point of view certainly have been preferable for the issue of tendency evidence to have been considered and dealt with before the commencement of the trial proper. Be that as it may, the notice given with respect to Ms Beckett's intention to adduce this particular evidence was reasonable in my opinion. 4The significant issues for determination were rather whether the evidence that is sought to be adduced is relevant, whether or not it has significant probative value and whether the evidence ought to be excluded because its probative value is outweighed by its prejudicial effect. 5Some of the applicable principles were reviewed by Mortimer J in Robinson v Goodman [2013] FCA 893 at [6]-[8] and [12]-[15] as follows: "[6] Before reaching s 97 itself, ss 55 and 56 of the Evidence Act 1995 (Cth) must be considered. The evidence sought to be adduced from Ms Tongue and Ms Adamopoulos must meet the test of relevance. That is, their evidence must affect the probability of the existence, or non-existence, of a fact in issue. Relevant evidence is admissible unless another provision of the Evidence Act excludes it, or confers a discretion on the Court to do so. [7] Section 97 of the Evidence Act is a contingent exclusionary rule. It excludes the tendency evidence unless the preconditions set out in subss (a) and (b) are met ...It is enough to say that the applicant must persuade me that the evidence is relevant, and meets the criteria in s 97 so as to avoid the exclusion contained in it. [8] Finally, the respondents have relied on the general exclusionary power in s 135 of the Evidence Act. Even if the evidence is relevant, and admissible under s 97, the respondents submit I should exercise my discretion in s 135 to exclude it because the probative value of the evidence is outweighed by the danger the evidence might be unfairly prejudicial to the respondents, or result in an undue waste of time. I consider those submissions in more detail below. ... [12] Putting to one side the question of reasonable notice (which is not in dispute in this application), there are two steps in the application of s 97. First, the Court must be satisfied that the evidence sought to be adduced is within the scope of the provisions. This, in turn, requires the Court to identify: first, the facts in issue in this proceeding in terms of Mr Goodman's conduct and statements; second, the precise evidence sought to be adduced under s 97; and, third, whether it can be said that evidence is capable of proving a tendency in Mr Goodman to behave in the way alleged, or to say the things alleged. [13] The second step is consideration of whether the Court thinks the evidence has 'significant probative value'. Only if the Court forms this opinion of the particular evidence may it be admitted. [14] In determining the second step, the Court must assess as a matter of logic and experience the impact the tendency evidence is capable of having on the existence or non existence of the facts in issue about Mr Goodman's conduct and statements: (see DSJ v Director of Public Prosecutions (Cth) (2012) 215 A Crim R 349; [2012] NSWCCA 9 at [7]-[10]). The term 'probative value' is defined in the Dictionary to the Evidence Act as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. [15] In determining 'the extent' to which the evidence can affect the assessment of which the Dictionary definition speaks, the Court can consider the cogency of the evidence, the strength of the inference or inferences that can be drawn from the evidence as to the tendency of a person to act, speak or think in a particular way, and the extent to which the tendency evidence increases the likelihood that a fact in issue did or did not occur: Jacara [2000] FCA 1886; 106 FCR 51 at [76]. A number of factors have been identified as indicators of the strength of inferences which could be drawn from proposed tendency evidence. They are collected in Odgers S, Uniform Evidence Law (10th ed, Thomson Reuters, 2012) pp 460-461 and deal with matters such as the numbers of occasions of conduct relied upon, time gaps between them, specificity of the tendency evidence, and the degree of similarity of the conduct and circumstances in which it occurred."