HIS HONOUR: Towards the end of the third day of the trial and during the course of the cross‑examination of the plaintiff, Senior Counsel for the defendants provided to the Court, and to the plaintiff, a bundle of documents which are said to concern incidents of violence at the nightclub operated by the plaintiff during the relevant period. One of the imputations pleaded by the plaintiff is that the relevant article imputed that she conducted a nightclub where violent altercations took place. The defendants have, amongst other matters, responded to that part of the plaintiff's case by saying that, if that imputation was conveyed, it was substantially true.
Senior Counsel for the defendants indicated that he sought to tender the bundle and then cross‑examine the plaintiff on its contents. In the absence of the jury, argument over its admissibility proceeded and then resumed again this morning, the fourth day of the trial. The bundle is separated into 25 tabs, each of which concerns what is said to be a particular incident at the plaintiff's nightclub. An initial objection was taken as to whether the incidents were particularised. I indicated that I would leave it to the parties to consider that overnight, and that if there was some incident relied on that was not particularised, the parties should raise it with me. No such indication was given this morning.
I will shortly address the documents behind each tab, but one matter of principle arose because the basis of the tender of some of the documents is the business record provisions of the Evidence Act 2005 (NSW). On behalf of the plaintiff, it was contended that the tender of at least some of the documents is precluded by the exception found within s 69(3) of the Evidence Act in respect of representations contained in documents, namely:
"69(3) …if the representation:
(a) was prepared or obtained for the purpose of conducting or for in contemplation of reconnection with an Australian or overseas proceeding, or
(b) was made in connection with an investigation relating or leading to a criminal proceedings".
In QBE Insurance (Australia) Limited v CGU Workers Compensation (NSW) Ltd (2012) 83 NSWLR 589 at [65] to [67] ("QBE"), I noted a number of authorities on this topic including a judgment of the Court of Criminal Appeal and a judgment of the Court of Appeal, concerning the words "in connection with" as found within ss 69(3)(a) and (b). I concluded that I was bound to apply an approach that read those words widely. Further, in QBE at [68] and following, I applied s 69(3)(b) on the premise that there are some circumstances in which a document was made in connection with an investigation relating to a criminal proceedings, even though no criminal proceeding in fact ensued.
The tenor or 69(3)(b) is that the question as to whether or not the relevant representation satisfied that provision is to be ascertained at the time the representation was made. With an investigation in respect of an allegation of criminal conduct, there will be cases where the investigation does not result in a charge being laid. That said, there are nevertheless matters of fact and degree as to whether some representation made by a body with responsibility for the enforcement of the criminal law had sufficient connection with at least a potential criminal proceeding so as to satisfy that provision. Bearing that in mind, I will address each of the documents behind the tabs.
Behind Tab 1 are three documents being an answer given to an interrogatory given by the plaintiff. Clearly there is no basis upon which that can be rejected. The fourth document consists of a note that appears to have been taken by a police officer at the Kings Cross Police Station entitled "Cops Event Summary". The document describes an incident in which an unknown person of interest, "POI", has punched someone in the plaintiff's club while they were walking down the stairs. The document also describes the efforts undertaken by the police to identify the POI which appear to have been unsuccessful. Consistent with what I have just stated, that document clearly was made in connection with an investigation relating to a criminal proceeding. I think it obvious that the police were notified of an assault and then recorded in these documents their attempts to investigate the assault, including identifying the relevant offender. I reject the tender of that document.
Behind Tab 2 are documents relating to an incident at the plaintiff's club on 4 May 2008. The first three pages concern an answer given by the plaintiff to an interrogatory which clearly will be admitted. The fourth document is an incident report which I understand was taken from a book maintained at the plaintiff's club in relation to various incidents. This is a business record and there is no basis for rejecting that document. It will be admitted.
The fifth document is a Court Attendance Notice which contains a reference to the laying of a charge against a person for an incident on 4 May 2008. There is a basis for connecting that incident to what is described in the answer to the interrogatory as well as the plaintiff's report book. The following four pages are a facts sheet which were prepared by the police in support of that charge. Subject to what follows, in my view, these are clearly documents that were prepared for the purpose of an Australian proceedings, or otherwise made in connection with an investigation leading to a criminal proceedings, and would be excluded under s 69(3) as evidence of the truth of the representations made therein.
The following four pages contain details of a printout from police computer system of the outcome of the charge that was laid following that incident. In my view, they do not fall within s 69(3)(a) as they were not prepared in contemplation of or in connection with the Australian proceeding. Instead, they were prepared as a record of what the outcome of a proceeding was. For similar reasons, they are not excluded under s 69(3)(b). Further, within those documents, there is an entry that is capable of connecting them to an incident at the plaintiff's club. They will be admitted.
One potential basis for the admission of the Court Attendance Notice and facts sheet to which I referred to earlier, was they should be admitted not as evidence of the truth of the representations contained therein, ie, that an assault occurred at the plaintiff's club, but merely as evidence of the fact that an allegation of an assault was made with a particular charge number so as to allow a connection to be drawn between the outcome in Court and the incident that is referred to in the interrogatory and the plaintiff's book. I accept that that does provide a basis for the tender which would avoid the hearsay rule to which s 69 is an exception. However, in respect of the facts sheet, I would consider that its prejudicial effect, namely that the jury would treat the statements made within it as evidence of the truth of the assertions when it is not admitted on that basis, outweighs its minor probative effect, namely as a means of connecting the outcome in Court with an incident at The Rouge, that being otherwise demonstrated by the Court Attendance Notice (Evidence Act, s 135).
Accordingly, in respect of the documents behind Tab 2, the fact sheet will be excluded but the balance of the documents will be admitted. In respect of the documents behind Tab 3, for the same reasons, the answers to the interrogatories, the entries in the plaintiff's internal workbook, the Court Attendance Notice and the COPS entries indicating the outcome of the charges laid will be admitted, but the police facts sheet will be excluded. Similarly, in respect of the documents behind Tab 4, the entry from the plaintiff's incident book, the Court Attendance Notices, the outcome of the attendance at Court will be admitted but the fact sheet will be excluded.
In respect of Tab 5 the answers to the interrogatories and the extract from the incident book will be admitted. The documents behind Tab 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 are either answers to interrogatories or extracts from the plaintiff's incident report and will be admitted.
The document behind Tab 22 is another COPS event summary. That document indicates that a police officer attached to the Kings Cross Licensing Unit, together with an auditor from the Sydney City Council, visited the plaintiff's club on Sunday 2 December 2007. The document records various observations made by the police about compliance with the licensing conditions and the like. It also records the fact that the police spoke with the licensee in relation to various issues that had been identified. Although it is not entirely clear, the tenor of the document is that it was not part of some investigation but it was instead part of the monitoring exercise and that absent some serious or flagrant violation there was no real consideration being given to the bringing of any proceeding arising out of what was detected. Most significantly it does not appear that the attendance was in respect of some specific complaint made about something that might amount to an offence. In those circumstances I am not satisfied the representation was made in connection with an investigation relating to a criminal proceeding. The document behind Tab 22 will be admitted.
The document behind Tab 23 is also a COPS event summary. It sets out some observations made by a police foot patrol which was being conducted in Darlinghurst Road at 12.20am on Saturday 12 April 2008. The officers observed a female person, who was intoxicated, enter the club. They record that police told her that she was required to leave the premises due to her level of intoxication. Again I am not satisfied this document was made in connection with an investigation relating to criminal proceedings. At the relevant time, the police were not investigating anything, instead they were recording the outcome of a patrol. The document behind Tab 23 will be admitted.
The document behind Tab 24 is another COPS event summary. It records the details of a meeting between Kings Cross Licensing Police and the plaintiff and other persons at around 2pm on Tuesday 21 July 2009. The meeting records that it was held "due to recent assaults within the venue and the responsibilities that the management have in relation to such incidents". The note does not descend to identify any particular incident, it records the licensing police inquiring about "staff training and current security arrangements".
Consistent with what I have already stated, I am not satisfied that this document, or more correctly the representations contained within this document, were made in connection with an investigation relating to a criminal proceedings. There is nothing to indicate that any criminal proceedings were even thought or contemplated. Instead, the note appears to have been prepared as part of a supervision and monitoring exercise being conducted by the licensing police. The document behind Tab 24 will be admitted.
The document behind Tab 25 appears to be a letter sent by someone employed by the plaintiff's club to the police enclosing the CCTV footage of an alleged incident on 21 November 2010 and an incident report. It will be admitted.
[3]
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Decision last updated: 09 March 2017