Supreme Court New South Wales Medium Neutral Citation: Beckett v State of New South Wales [2014] NSWSC 1625 Hearing dates: 11 November 2014 Decision date: 18 November 2014 Before: Harrison J Decision: The evidence of Ms Catt is excluded Catchwords: EVIDENCE - malicious prosecution - whether evidence of witness relevant to an absence of reasonable and probable cause - whether evidence impermissibly concerned only with plaintiff's guilt - where witness possibly unreliable - whether probative value of evidence outweighed by danger of unfair prejudice pursuant to s 135 Evidence Act 1995 Legislation Cited: Evidence Act 1995 Cases Cited: Commonwealth Life Assurance Society Limited v Smith [1938] HCA 2; (1938) 59 CLR 527 Earnshaw v Loy (No 1) [1959] VR 248 Category: Procedural and other rulings Parties: Roseanne Beckett (Plaintiff) State of New South Wales (Defendant) Representation: Solicitors: Turner Freeman (Plaintiff) I V Knight, Crown Solicitor (Defendant) File Number(s): 2008/289411 Publication restriction: Nil Judgment 1HIS HONOUR: Julie Catt is the daughter of Barry Catt, who was formerly married to Ms Beckett. The State has sought to lead evidence from Ms Catt in these proceedings. Ms Beckett has objected to that course for at least two reasons. First, having regard to the issues at large in these proceedings, none of Ms Catt's foreshadowed evidence is relevant and should be excluded at the threshold. Secondly, Ms Catt is demonstrably an unreliable witness and her evidence is likely in those circumstances to be of no weight or very little weight. I perceive also that Ms Beckett contends, having regard to the first two grounds of objection, that Ms Beckett also asserts that the probative value of Ms Catt's evidence is substantially outweighed by the danger of unfair prejudice, and should be excluded pursuant to s 135 of the Evidence Act 1995. 2The task confronting Ms Beckett in these proceedings is to demonstrate that Mr Thomas and Mr Paget, the prosecutors for the purposes of the tort of malicious prosecution, commenced or maintained the prosecution against her without an honest and reasonable belief in her guilt and that they acted maliciously. The decision of the High Court in A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 is instructive, in particular the following passages at [57] - [59]: "[57] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor. [58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light." 3The matters to which paragraph [59] of the High Court's decision draws attention are central to Ms Beckett's opposition to Ms Catt's evidence. Ms Beckett says that nothing that Ms Catt apparently now wishes to say can have anything to do with, and cannot establish or inform, what material was before the prosecutor at the relevant time. In order to understand that contention, it is necessary to appreciate precisely what it is that the State seeks to elicit from her in this case. 4The issues to which she was to be directed were whether there was ever a pistol in the premises where she lived with her father Mr Catt and Ms Beckett during the period up to the execution of the search warrant on 24 August 1989, and whether Ms Beckett put, or organised others to put, lithium into cartons of milk in the workshop refrigerator at Catty's Smash Repairs where her father worked. Mr Maconachie QC referred to these issues when tendering exhibit 31 and foreshadowing the anticipated scope of Ms Catt's evidence. The transcript records the following brief discussion between Mr Maconachie and me on that topic as follows: "HIS HONOUR: Just remind me why I should receive any evidence from this witness that was not and could not have been, because it was given later, before the Prosecutor? MACONACHIE: There are two essential bases, perhaps three, but two essential bases: first, I expect the evidence to establish that prior to 24 August 1989, there was in the possession of Ms Beckett, that is relevant to an issue in these proceedings, that is to say, Ms Catt insists that she did not have a pistol, and that inferentially, at least, it was planted by Detective Thomas or somebody with his connivance or under his instruction. Second, she has maintained that she was in no way connected with any attempt to poison Barry Catt, and inferentially or directly, her case is to the effect that police officers and probably Mr Paget and Mr Thomas, together or alternatively, in combination with others, Newell and Barry Catt, conspired together to produce evidence which was false. This witness I expect to give evidence which will go to the issue that the conspiracy case is itself false, and that is essentially the bases upon which I advance this evidence. Not to prove directly what was in the mind of the prosecutor, or prosecutors, and what they made of it, or what he made of it, but rather to meet the case that is put against us to the effect that there was an absence of reasonable and probable cause, because there was never a gun, it was planted. There was an absence of reasonable and probable cause, because there was no evidence which would enable one to conclude that the lithium count ever had any substance, and the attempt to manufacture a case against Mrs Beckett invites or requires the conclusion that the purpose of prosecuting her was otherwise than the proper purpose of putting the matter before the Court. There is also evidence which goes to, did the rock incident occur in the way in which the prosecution at trial asserted that it did, and did the cricket or eucalyptus oil incident occur in the way in which it was asserted at trial that it did? That goes also to establish that the denials by Mrs Beckett in this Court are wrong or are false... ... That part of the case again directed towards absence of reasonable and probable cause and the presence of malice. This witness will give evidence which will, we will contend, help the Court to conclude that the evidence of the witness, Mrs Beckett in this case, is in fact false and that her case of conspiracy against the police officers and potentially others is itself false. That's what the evidence goes to." 5In anticipation of calling Ms Catt to give evidence on these issues, the State provided me with a bundle of material (that became exhibit 31) in the form of a statement by Ms Catt dated 31 January 2003 that had annexed to it other statements made by her on previous occasions, marked up so as to indicate the subjects to which it was proposed to direct her during her evidence-in-chief. Specifically, the material in that exhibit is as follows: (1)A record of interview between Detective Boyd-Skinner and Ms Catt on 20 January 2003. (2)Part of a record of interview between Detective Henderson and Ms Catt dated 2 November 1989. (3)A statement made by Ms Catt on 26 February 1990. (4)A statement made by Ms Catt on 27 February 1990. 6Exhibit 31 referred to a piece of paper with her hand drawn picture of a gun and the transcript of her evidence at Ms Beckett's trial in 1991, but neither was in fact annexed to the statement. 7The interview conducted by Detectives Boyd-Skinner and Reisp was for the purposes of the Davidson Inquiry in 2003. It is a fair summary of what Ms Catt said during the course of that interview that she saw a small gun in Ms Beckett's dresser drawer at 2 Cornwall Street, Taree where they lived, in contrast to her evidence during Ms Beckett's trial in which she made no reference to having seen any such item. The drawing referred to earlier was created at the invitation of Detective Reisp during the interview. 8Ms Catt was asked about the gun at question 80 of the interview as follows: "Q. Did you ever give evidence about a gun in court at any time? A. No. That was...I don't think I did. Um, things like that, yeah, we were just told not to say anything, that's it, about the cricket bat, um, about guns, we just weren't...told to say anything at all." 9Ms Catt also said in that interview that she did not tell the truth during her evidence at Ms Beckett's trial because she was, in effect, told what to say and what not to say by Ms Beckett. In answer to question 179 Ms Catt said, "she had told us what to say, how to say it... and, yeah, we were like parrots." Ms Catt continued, saying "we just did whatever she said when and how." That included the giving of a false version of what occurred during the rock incident. 10The State maintained that the anticipated evidence from Ms Catt was admissible notwithstanding the concession that it did not go to the issue of what was before the prosecutor. I was referred to authority in support of the State's contention that the evidence was admissible for the other purposes it identified. 11Commonwealth Life Assurance Society Limited v Smith [1938] HCA 2; (1938) 59 CLR 527 was a case concerned with an action for malicious prosecution that confirmed the now uncontroversial proposition that the guilt or innocence of a plaintiff is not an issue going to his or her cause of action, including the question of damages. Acknowledging that a plaintiff must prove that the prosecution terminated in his favour, the High Court went on at 542-3 to say this: "He must prove that there was no reasonable and probable cause for the prosecution. But he need not prove that in truth he was innocent of the charge, and it is not open to the defendant to attempt to prove as an answer to the action that in truth he was guilty, notwithstanding the termination of the criminal proceedings in his favour. In proving the existence of reasonable and probable cause, the defendant is confined to information of which he was aware at the time of the prosecution. He cannot justify a prosecution that failed by showing that facts of which he did not know made it reasonable (Delegal v. Highley; Turner v. Ambler). In the course of proving facts on which he based the prosecution, the defendant may sometimes succeed in raising a doubt of the plaintiff's innocence. When this happens an absence of reasonable and probable cause is hardly likely to be found. But it would be surprising if a defendant could go into the guilt or innocence of the plaintiff as a separate issue, though on the issue of reasonable and probable cause he is not permitted to prove facts which he did not know at the time of the prosecution even when the facts amount to the highest degree of objective cause for the prosecution, namely, proof of the real guilt of the accused." [Emphasis added] 12Ms Beckett embraced that statement of principle as an absolute impediment to the State's proposal to call the foreshadowed evidence from Ms Catt. The State relied upon what was said by Sholl J in Earnshaw v Loy (No 1) [1959] VR 248 at 249-51. In a detailed, if somewhat lengthy, consideration of the issue, his Honour said this: "The remaining matter which has been discussed is one which has given me a good deal of difficulty during the course of this trial. This is a case in which there are combined a count for assault and a count for malicious prosecution. The plaintiff is a person who was charged with assault in a criminal proceeding and acquitted. The defendant is a person who alleged, in the criminal proceeding, that he was the victim of the assault. That issue was determined against him in the criminal proceeding. The plaintiff in this case, now alleges that, having been wrongly prosecuted in the criminal court, he ought to be compensated by the defendant who was the informant below. On the assault count, the defendant must be allowed, if he can, to show that it was the plaintiff who assaulted him, and not vice versa. But can such evidence be made use of by him on the malicious prosecution count? At one time there was authority, particularly for Australia in the case of Davis v Gell [1924] HCA 56; (1924) 35 CLR 275, that the plaintiff's innocence was in issue in every action for malicious prosecution. Later that view was negatived, and reference may be made particularly to Commonwealth Life Assurance Society, Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527. That case and other cases now appear to establish clearly that, except where there is a nolle prosequi, the favourable determination of the criminal proceedings cannot be controverted in the subsequent civil action, at any rate as a separate issue. The plaintiff does not have to prove his innocence over again; it is already conclusively established. Nor can the defendant prove the plaintiff's guilt as a defence to the action, in itself. But it is said he can prove it in order to show reasonable and probable cause for his own action in prosecuting the plaintiff, and the question is how I should direct the jury as to that matter. I have been unable to discover any case in which the unsuccessful informant in the criminal court, the alleged victim of an assault by the plaintiff in the civil action, has nevertheless established his right in the civil action to prove, in relation to the question of reasonable and probable cause, that the charge which he made in the criminal court and which there failed was, in fact, well founded. The difficulty which I have felt on that score has not been lessened by finding two passages in the books which assert in very general terms the conclusiveness in the civil proceedings of the plaintiff's acquittal, but also concede that the defendant may throw doubt upon it in order to show reasonable and probable cause. In Commonwealth Life Assurance Society Ltd. v Smith, supra, at p. 542, Rich, Dixon, Evatt and McTiernan, JJ, all join in saying that the plaintiff in the civil action need not prove that in truth he was innocent of the charge below. They say it is not open to the defendant to attempt to prove, as an answer to the action, that, in truth he was guilty, notwithstanding the determination of the criminal proceedings in his favour. But they add, that in the course of proving facts on which he based the prosecution, the defendant may sometimes succeed in "raising a doubt of the plaintiff's innocence", and that when this happens an absence of reasonable and probable cause is hardly likely to be found. Their Honours do not say, "may succeed in establishing the plaintiff's guilt." In Herniman v Smith, [1938] AC 305, at p. 315, Lord Atkin says: "It will be necessary therefore to examine the facts ascertained by the defendant at the time when he laid the information and subsequently proceeded with the prosecution. I need only state that the inquiry is confined to the effect or the reasonable effect of the evidence from time to time on Mr Smith's mind; and that no question any longer remains as to the plaintiff's innocence which must be conclusively presumed. Now the doubt I have felt has been as to whether such a conclusive presumption can be maintained if the defendant is entitled, in effect, to rebut it, even if only for the purpose of showing reasonable and probable cause for the prosecution which he formerly brought, or, more accurately, of negativing the allegation, which the plaintiff must prove, that there was no reasonable and probable cause. There is, however, no specific authority which carries the principle of conclusiveness so far, and counsel have pointed out to me in very helpful arguments this afternoon that if such a proposition were maintained a defendant, who had himself been the alleged victim of the crime which he unsuccessfully asserted below, would have a very slender chance of establishing reasonable and probable cause were he to begin from the position that he could not in the civil proceedings assert, at first hand, so to speak, that in fact he had been the victim of the crime which he alleged. In other words, a man who acted on, and proved, a hearsay account of the plaintiff's guilt would be in a more favourable position than a person who acted on what he asserted to be his own experience involving guilt on the part of the plaintiff. Now I am not yet fully satisfied about this matter, because it might be said, in answer to such an argument, that a man who brought a criminal prosecution which failed and which established that he had not been the victim of a crime, ought not to be allowed to assert, later on, even to show reasonable and probable cause for the prosecution, and even on his own personal oath and authority, that he was the victim of such a crime. If in such a case the judge (as he might) asked the jury questions as to the facts, on which he intended himself then to decide reasonable and probable cause, and if the defendant could assert the plaintiff's guilt, even if only in relation to that issue, one finding of the jury might be that the plaintiff was guilty of the alleged crime, for example that he did assault the defendant. But both counsel have urged upon me that I should not adopt in this case the view that the acquittal in the criminal proceedings prevents the defendant from alleging here that the plaintiff did in fact assault him. Both counsel have discussed the matter in what I have found a most useful fashion, and have discussed it on the basis that it is an important question of law, going a good deal beyond the importance of the present case. I am indebted to them for the assistance they have given me, and in view of the doubt which exists about the matter, I do not propose to direct the jury that this defendant is unable to advance to them the proposition that they ought to find that he was, in fact, assaulted by Earnshaw and that, on that account, he had reasonable and probable cause for instituting the prosecution. It may be that the true explanation of the authorities is that they were concerned only with rebutting the old notion that the plaintiff's innocence was in issue, and as a separate issue, as soon as he brought the action. It may be that the learned judges were simply negativing that proposition, and were not intending to exclude the possibility that the question of the plaintiff's guilt or innocence might be litigated in relation to reasonable and probable cause. It may be that is what the learned judges of the High Court had in mind in the passage which I have read from Commonwealth Life Assurance Society Ltd. v Smith, supra." 13The passage in Smith to which Sholl J was referring is the passage at 542-3 to which I have already referred. 14I have also found this to be a difficult issue. It is clear that the guilt or innocence of the plaintiff in a malicious prosecution action is not something that is relevant either to the proof or rebuttal of his or her cause of action: a plaintiff is obviously not required to establish his or her innocence if the proceedings terminated favourably, and a defendant cannot rebut the effect of a favourable termination of the proceedings by attempting to establish the plaintiff's guilt. However, the High Court in Smith would appear clearly to have quarantined the guilt or innocence of the plaintiff as "a separate issue". In other words, challenging the legal conclusion of the plaintiff's guilt or innocence, as opposed to revisiting the facts that may have underpinned what ultimately became the termination of the relevant proceedings in favour of the plaintiff, are two separate and distinct matters. If it were otherwise, a defendant who responded to a claim of malicious prosecution would be unable to seek to establish facts capable of supporting his or her defence, being the negativing of the alleged absence of reasonable and probable cause, if they were facts that coincidentally were also consistent with the plaintiff's guilt. Properly understood, the defendant would not in such a case be asserting that the plaintiff was guilty, which is impermissible, but would be asserting that the facts and matters in his or her possession, as the prosecutor at the relevant time, were sufficient to support or establish the existence of a reasonable and probable cause to commence or to maintain the prosecution, even if in the events that occurred the prosecution failed. 15In the present case, Ms Beckett contends that Mr Thomas and Mr Paget corruptly acted or conspired to fabricate some part or all of the several cases against her. This included the alleged manufacture of evidence and the solicitation of false statements from witnesses. The most graphic exemplar of that alleged conduct for present purposes is Ms Beckett's complaint that the pistol discovered in her ensuite bathroom during the execution of a search warrant at her home on 24 August 1989 was planted by Mr Thomas or by someone who had been directed by him to do so. 16It was Ms Beckett's evidence at her trial and also before me in these proceedings that the gun was not hers and that she had no knowledge of it until it was uncovered by Constable Cottee during the search of the premises. Not only did Ms Beckett give that evidence, arguably consistent with her innocence, but she also called Mr Caesar in aid of the same proposition. It is convenient to recall that Mr Caesar's evidence about this was that he said Mr Thomas "openly told us that he had planted the gun on Roseanne Catt". That evidence was clearly admissible upon the basis that it went to what was allegedly self-evidently in the mind of Mr Thomas as the prosecutor at the relevant time, even if it was also arguably, but irrelevantly, consistent with Ms Beckett's protestations of innocence. 17In the case for the State, Constable Cottee gave evidence before me that she found the pistol in the drawer. No fundamental objection to that evidence was taken by the plaintiff upon the basis that it offended the principle that Ms Beckett's innocence could not now be called into question. That was for the obvious reason that it was material that was before the prosecutor at the relevant time. It is beside the point that it was also evidence arguably, but irrelevantly, consistent with Ms Beckett's guilt. 18The fundamental difference, and therefore difficulty, with the evidence of Ms Catt is that her evidence at the trial of Ms Beckett was material that was available to Mr Thomas as the prosecutor in the course of instituting and maintaining the prosecution of Ms Beckett between 24 August 1989 and the date of her conviction. The evidence that Ms Catt gave was favourable to Ms Beckett and consistent with her innocence. It is only since Ms Beckett was sentenced to a term of imprisonment that Ms Catt has come forward with a different version of what occurred. Clearly enough, that version was not and could not have been relevantly before the prosecutor for the simple reason that it did not materialise until Ms Catt changed her story after the prosecution was concluded. I do not think that the State can now seek to rely upon evidence from a witness that materialised no earlier than 2003 when her evidence favourable to Ms Beckett formed part of that collection of material that was before the prosecutor at the relevant time. The State's attempt to adduce Ms Catt's latest version of what she says occurred seems to me to be more consistent with establishing her guilt than rebutting Ms Beckett's allegation of the absence of reasonable and probable cause. It is timely to reiterate what the High Court said in Smith: "In proving the existence of reasonable and probable cause, the defendant is confined to information of which he was aware at the time of the prosecution. He cannot justify a prosecution that failed by showing that facts of which he did not know made it reasonable." [Emphasis added] 19Doing the best I can, it seems to me that the State is in fact traversing Ms Beckett's innocence rather than attempting to rebut her case of absence of reasonable and probable cause. By definition, nothing that Ms Catt said for the first time in or about 2003, concerning what happened between 1989 and 1991, can have been material that was before the prosecutor at the relevant time. The reception of her latter day evidence would also create an irreconcilable conflict between her evidence favourable to Ms Beckett that was before the prosecutor and evidence unfavourable to Ms Beckett that was not. To do otherwise than reject the State's proposal to call and rely upon her evidence would create the intolerable difficulty that opposing parties would be relying upon different versions of the same events from a single witness in order to establish conflicting results. It seems to me, in accordance with authority, that it could only be if both versions of Ms Catt's evidence, albeit contradictory, were before the prosecutor at the time that her evidence could be received. That is not the present case. Any different approach in this case would be to permit the State to justify a prosecution that failed by showing that facts, of which Mr Thomas did not know, made it reasonable. 20Even if the State's reliance upon Earnshaw is well founded, I consider that it is distinguishable upon the facts in this case. Earnshaw involved a claim by the plaintiff for damages for both assault and malicious prosecution. The defendant had prosecuted the plaintiff for assault but had failed. The plaintiff then alleged in the damages proceedings that the defendant was in fact the assailant and he sued accordingly. The defendant was permitted to lead evidence in the case to defend the assault allegation that contradicted the favourable outcome for the plaintiff on that charge in the prosecution proceedings. It would not have been possible for the defendant adequately to have met the claim for damages for assault without being entitled to rely upon evidence suggesting that the plaintiff assaulted him. The plaintiff's claim for damages was also being heard before a jury and counsel for both sides agreed that his Honour should allow the evidence, despite the passage in Smith to which his Honour specifically referred. 21Ms Beckett's second proposition is without merit. The fact that one side anticipates that a particular witness will be unreliable cannot at a preliminary stage be permitted to foreclose the assessment of the evidence before it is given. Indeed, a comparison with previous versions given by a witness may well be an instructive area of examination against which credibility or reliability can be tested, and no premature assumptions or conclusions by others can operate as a substitute for the trial judge's assessment. It was for that reason, among others, that I took the evidence of Ms Catt during the trial. The other reasons were that there were indications that she was not enthusiastic about giving her evidence at all but had made herself available notwithstanding, that a video link had been organised to suit her geographical and emotional requirements and that it was convenient to do so at that stage in the proceedings. 22Ms Beckett insisted that Ms Catt had given evidence favourable to her at her trial, but later resiled from it in several significant respects. That was apparent from a comparison of statements made by Ms Catt obtained in advance of the Davidson Inquiry with her original statements and evidence at Ms Beckett's trial. Ms Catt was cross-examined upon those differences in the course of the evidence that she gave before me. Her evidence has therefore now be taken and preserved against the possibility that it becomes necessary to revisit my decision to exclude it. 23Finally, I am also satisfied that s 135 of the Evidence Act requires the evidence to be excluded. I have already concluded that Ms Catt's evidence is not relevant because it does not address the issue of what was before the prosecutor at the relevant time but instead appears to be directed to contradicting the favourable conclusion of the prosecution. Its probative value is in that sense entirely limited. Correspondingly, reception of the evidence, directed to creating doubt about the circumstances in which and the reasons why Ms Catt no longer supports Ms Beckett, necessarily creates the danger of unfair prejudice to her. That is because such an inquiry invites the examination and dissection of long past events that are only tangentially concerned with the present proceedings, unpredictable in both scope and content, together with the very real prospect that such evidence might also cause or result in undue waste of time. 24For these reasons I consider that the evidence given by Ms Catt on 11 November 2014 should be excluded. ********** 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. Decision last updated: 18 November 2014