Beckett v State of New South Wales [2014] NSWSC 1600

Supreme Court New South Wales

Medium Neutral Citation: Beckett v State of New South Wales [2014] NSWSC 1600 Hearing dates: 11 November 2014 Decision date: 13 November 2014 Before: Harrison J Decision: Application dismissed Catchwords: EVIDENCE - application to adduce evidence pursuant to s 63(2) where witness unavailable by reason of death - whether applicant should have anticipated the death - whether failure to call witness amounted to conduct that disentitled reliance upon the provision - whether the death of witness during the hearing was to be distinguished from a witness who predeceased the commencement of proceedings Legislation Cited: Evidence Act 1995 Cases Cited: Ordukaya v Hicks [2000] NSWCA 180 Category: Procedural and other rulings Parties: Roseanne Beckett (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: P E Blacket SC, K T Nomchong 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 Decision under appeal File Number(s): 2008/289411

Judgment 1HIS HONOUR: Ms Beckett sues the State of New South Wales for malicious prosecution. She was arrested on 24 August 1989 and charged with several criminal offences including two of solicit to murder. She was subsequently tried and convicted on several counts by a jury following a long trial in 1991. Ms Beckett was sentenced to, and substantially served, a long term of imprisonment. Many of her convictions were later quashed by the Court of Criminal Appeal and a new trial was ordered. Ms Beckett was not ever retried and a nolle prosequi was later entered in her favour. 2These proceedings were originally commenced in 2008. Peter Thomas and Carl Paget were named as the prosecutors. The substantive hearing before me commenced on 28 July 2014. Ms Beckett completed her evidence on 6 August 2014. Mr Thomas died on 25 August 2014. I was notified of that fact on 28 August 2014. The hearing was adjourned the following day, for unrelated reasons, until 27 October 2014. 3On 24 October 2014, the State gave notice to Ms Beckett pursuant to s 67 of the Evidence Act 1995 that it intended to adduce evidence of previous representations made by Mr Thomas and to argue that the hearsay rule does not apply to those previous representations in reliance upon s 63(2) of the Act. The State has attached two very large volumes of written material to the notice that it has served. It will be necessary to refer to at least some of that material in due course. 4Ms Beckett opposes the State's proposed reliance upon all of that material for any purpose. She does so on a number of grounds. Those grounds are partly based upon material deposed to by her solicitor Mr Goldberg in his affidavit sworn 6 November 2014, which was read on this application without objection or cross-examination.