DPP v Pinn

Background facts

1. On 27 November 2014 the defendant was charged with stalk/intimidate with intent to cause fear and physical harm. The alleged victim of the offence was the defendant's former partner, with whom he shared three children. A provisional AVO was made on that day and served on him by police.
2. On 4 December 2014 the defendant was charged with contravene an AVO. On that day Magistrate Huber made an interim AVO against the defendant (IAVO) at the Waverley Local Court. The bench sheet recorded that the defendant was in attendance. The order was sent to the Commissioner of Police as required by s 77 of the Act (see below) and posted on the police intranet. A copy of the sealed IAVO was placed on the Local Court file. The order contained the following statement: "The defendant was present in court when the order was made."
3. On 31 December 2014, eight charges of knowingly contravene a restriction specified in an AVO were laid against the defendant for offences said to have occurred between 10 December 2014 and 30 December 2014. The AVO to which the charges related was the IAVO.
4. The hearing of the charges was listed before Huber LCM on 28 April 2015.

The Act

1. Section 3(1) of the Act defines AVO as including an interim AVO.
2. Section 14 of the Act, which is contained in Part 3, relevantly provides: "14 Offence of contravening apprehended violence order (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both. (2) A person is not guilty of an offence against subsection (1) unless: (a) in the case of an apprehended violence order made by a court, the person . . . was present in court when the order was made, or . . ."
3. Section 22 of the Act, which is contained in Part 6, relevantly provides: "22 Interim court orders (1) A court may, on application made in accordance with Part 10, make an interim apprehended domestic violence order or an interim apprehended personal violence order if it appears to the court that it is necessary or appropriate to do so in the circumstances. . . . (3) An interim court order may be made by a court whether or not: (a) the defendant is present at the proceedings, or (b) the defendant has been given notice of the proceedings. . . . (5) If an interim court order is made by a court: (a) the court is to require the defendant to appear at a further hearing of the matter by the court as soon as practicable after the interim court order is made, and (b) the court may, at the further hearing or an adjourned further hearing, make a final apprehended violence order in the same terms as the interim court order or with variations or may revoke the interim court order (whether or not the defendant appears at any such further hearing). (6) An interim court order has, while it remains in force, the same effect as a final apprehended violence order."
4. If the defendant is present in court when an interim court order is made, the court must explain to him or her: the effect of the order; the consequences that might follow for its contravention; and the rights of the defendant and the protected person named in the order: s 76(1). The court must also provide the defendant with a written explanation of these matters: s 76(3).
5. Section 77 of the Act requires the Registrar of the court that makes an interim AVO to: prepare a copy of the order and (if the defendant is present in court) serve a copy of it personally on the defendant; or (if the defendant is not in court when the order is made) arrange for a copy of the order to be served personally on the defendant by a police officer or such other person as the Registrar thinks fit; or, if the defendant is in court when the order is made but the Registrar is unable to serve a copy of the order on the defendant personally, arrange for a copy to be sent by post to the defendant.
6. Section 77(7) requires the Registrar to cause a copy of the order and a copy of any application for an order to be forwarded to the Commissioner of Police.
7. There is no statutory requirement in the Act for the defendant to sign the order or acknowledge its service by signature, or otherwise.

The Evidence Act 1995 (NSW)

1. Several sections of the Evidence Act were referred to before the Magistrate and in this Court. They are set out below to the extent necessary. "58 Inferences as to relevance (1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. (2) Subsection (1) does not limit the matters from which inferences may properly be drawn. . . . 60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. . . . 69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) at any time was or formed part of such a record, and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question, and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind, the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). 144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. . . . Division 2 Proof of certain matters by affidavits or written statements 170 Evidence relating to certain matters (1) Evidence of a fact that is, because of a provision of this Act referred to in the Table, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give such evidence. Table Provisions of this Act Subject-matter Section 48 Proof of contents of documents . . . Section 69 Hearsay exception for business records

. . . (2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement. 171 Persons who may give such evidence (1) Such evidence may be given by: (a) a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing, or (b) except in the case of evidence of a fact that is to be proved in relation to a document or thing because of section 63, 64 or 65 - an authorised person. (2) Despite subsection (1) (b), evidence must not be given under this section by an authorised person who, at the relevant time or afterwards, did not have a position of responsibility in relation to making or keeping the document or thing unless it appears to the court that: (a) it is not reasonably practicable for the evidence to be given by a person who had, at the relevant time or afterwards, a position of responsibility in relation to making or keeping the document or thing, or (b) having regard to all the circumstances of the case, undue expense would be caused by calling such a person as a witness. (3) In this section: authorised person means: (a) a person before whom an oath, declaration or affidavit may be taken or made in a country or place outside the State under section 26 of the Oaths Act 1900, or (b) a police officer of or above the rank of sergeant, or (c) a person authorised by the Attorney General for the purposes of this section. 172 Evidence based on knowledge, belief or information (1) Despite Chapter 3, the evidence may include evidence based on the knowledge and belief of the person who gives it, or on information that that person has. (2) An affidavit or statement that includes evidence based on knowledge, information or belief must set out the source of the knowledge or information or the basis of the belief. . . . 178 Convictions, acquittals and other judicial proceedings (1) This section applies to the following facts: . . . (c) an order by an applicable court, . . . (2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court: (a) showing the fact, or purporting to contain particulars, of the record, . . . order or proceeding in question, and (b) stating the time and place of the . . . order or proceeding, and (c) stating the title of the applicable court. (3) A certificate given under this section showing a . . . order is also evidence of the . . .matter in respect of which the . . .order was . . . made, if stated in the certificate. . . . (5) A certificate given under this section purporting to contain particulars of a . . . order or proceeding is also evidence of the matters stated in the certificate. (6) In this section: . . . applicable court means an Australian court or a foreign court. . . . 183 Inferences If a question arises about the application of a provision of this Act in relation to a document or thing, the court may: (a) examine the document or thing, and (b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn."

The hearing of the charges against the defendant before Huber LCM

The first day: 28 April 2015

1. In addition to the eight charges referred to above, the defendant was charged with common assault (contrary to s 61 of the Crimes Act 1900 (NSW)) and damage to property (contrary to s 195 of the Crimes Act). The hearing of all ten charges was listed before Huber LCM on 28 April 2015.
2. Proof of the eight charges under the Act required the prosecution to prove, relevantly, the IAVO; and that the defendant was present in court at the time the IAVO was made.
3. At the hearing on 28 April 2015 the police prosecutor tendered the IAVO. The defendant's representative, Mr Chhabra, objected on the grounds of relevance. He contended that because the defendant had not signed the IAVO it had "no provenance"; could not be "what it purports to be without a signature"; and "is ink on a page at this time".
4. In response to the objection to the IAVO, the prosecutor called Constable McCarron, the Officer in Charge. He deposed that he had obtained a copy of IAVO from Court Notices on the police intranet, which he explained was what the police had received from the Local Court when the IAVO had been made. He also gave evidence that the IAVO was part of the brief that was served on the defendant.
5. After the morning adjournment, Constable McCarron gave further evidence that, during the adjournment, he had asked at the Registry of the Waverley Local Court for the IAVO from the court file. The document which was provided by the Registry corresponded with the IAVO he had obtained from the police intranet. Constable McCarron also gave evidence that he had inspected the bench sheet for the hearing on 4 December 2014, which he said also indicated that the defendant was present in court on that day. The prosecutor sought to tender the bench sheet. Objection was also taken to the bench sheet, which was rejected.
6. The prosecutor renewed the tender of the IAVO. Mr Chhabra added to his earlier relevance objection the submission that the document contained a statement that the defendant was present in court which was hearsay evidence and therefore inadmissible to prove that the defendant was actually present unless the IAVO was a business record within the meaning of s 69 of the Evidence Act. Mr Chhabra contended that the IAVO was not a business record and, in any event, fell within the prohibition in s 69(3). As the second ground (which concerned s 69) is not pressed it is not necessary for me to address further the argument based on s 69.
7. The hearing of the charges continued. The protected person gave evidence. Over the defendant's objection her Honour adjourned the hearing to 8 May 2015 to enable the prosecution to present further evidence in relation to the tender of the IAVO, on which the prosecution case in respect of the eight charges against the Act depended.

The second day: 8 May 2015

1. At the resumed hearing the prosecutor sought to tender the bench sheet and the tape of the hearing on 4 December 2014 on the voir dire on the admissibility of the IAVO. The defendant's representative objected to both the bench sheet and the tape and submitted that the IAVO, the bench sheet and the tape ought be rejected. He contended that the only route to admissibility of the documents was if they could be shown to be business records pursuant to s 69. He submitted that supporting affidavits as provided for by ss 170, 171 and 172 of the Evidence Act were required or that the prosecution could have obtained a s 178 certificate to establish that the IAVO was made.
2. The defendant's representative relied on National Australia Bank v Rusu [1999] NSWSC 539; 47 NSWLR 309 in which Bryson J rejected documents which purported to be bank statements of the account conducted by the second defendant at the Advance Bank on the basis that his Honour was not persuaded to the relevant standard of their authenticity.
3. Her Honour rejected the tender of the tape, without listening to it, on the ground that its provenance was not proved by an affidavit either from the Registrar of the Local Court at Waverley or from the transcriptions department. Her Honour also rejected the bench sheet, without reading it.
4. The prosecutor renewed the tender of the IAVO on the footing that Constable McCarron had given evidence as to its provenance. The Magistrate again rejected the tender.

The reasons of the Magistrate for rejecting the IAVO and associated documents

1. Her Honour delivered reasons ex tempore for rejecting the tender of all three documents: the IAVO, the bench sheet; and the tape. Her Honour said that she was not satisfied that the documents were in admissible form or had been accompanied by the appropriate documents. Her Honour accepted the defendant's submissions that the only basis on which those documents could be admitted was s 69 of the Evidence Act.
2. The Magistrate noted the prosecutor's reliance on: Constable McCarron's evidence of the IAVO and how he had obtained it from the Court via the police intranet; s 144(1)(b) of the Evidence Act in relation to the bench sheet; and s 183 of the Evidence Act. Her Honour also referred to Australian Competition and Consumer Commission v Air New Zealand (No. 1) (2012) 207 FCR 448 (ACCC v Air New Zealand (No. 1)) and Australian Securities and Investments Commission v Rich [2005] NSWSC 417 (ASIC v Rich), to which she had been referred by the prosecution.
3. Her Honour accepted that relevance was the starting point and then addressed the question of "authenticity". Her Honour then addressed s 69 of the Evidence Act but did not ultimately make a determination whether the documents were admissible under that section.
4. The Magistrate then outlined the various ways in which the prosecutor could have tendered the documents (the IAVO, the bench sheet and the tape); proved that the IAVO had been made; and proved that the defendant was present in Court. Her Honour listed the following: 1. providing an affidavit from a proper officer or Registrar (to prove the IAVO, the bench sheet or the tape); 2. issuing a subpoena to the Registrar (to prove the IAVO, the bench sheet or the tape); 3. issuing a subpoena to the prosecutor who appeared on 4 December 2012 who could have given evidence as to whether the defendant was in court on that day when the IAVO was made; and 4. issuing a subpoena to the relevant domestic violence officer who was present on 4 December 2012 who could have given evidence that the IAVO was made and that the defendant was present.
5. As the three documents had been rejected, the prosecution could not prove the eight charges involving breach of the IAVO, which were accordingly dismissed.

The first ground: what was required to prove the IAVO

1. The prosecutor was required to prove the making of the IAVO as an ingredient of the charge brought against s 14(1) of the Act and was therefore obliged, as part of the proof of the prosecution case, to tender the order itself. I accept the plaintiff's contention that the evidence given by Constable McCarron (that he had printed out the order from the police intranet) was sufficient to establish the provenance of the IAVO. Once its provenance was established, the document, which was plainly relevant, was admissible.
2. Its provenance was further established by the tender of the bench sheet and his evidence that he had compared the IAVO on the court file with the IAVO which he had printed out and found that they corresponded. Her Honour was in error in rejecting the bench sheet as a record of what had occurred in court on 4 December 2014.
3. Once the IAVO was admitted (for the purpose of proving that the order was made and its terms), s 60 of the Evidence Act applied and the statement that the defendant was present was in evidence and could be used for all purposes, including the hearsay purpose, to establish that he was in fact present.

Ground 3: erroneous approach to considerations of admissibility

1. Her Honour appears to have placed significant reliance on the statements of Bryson J in National Australia Bank v Rusu and refused to apply s 58 of the Evidence Act to draw such inferences as were open by an examination of the IAVO, the bench sheet and the tape.
2. The plaintiff contended that National Australia Bank v Rusu ought not be followed and relied on the decision of Perram J in ACCC v Air New Zealand (No. 1) in which his Honour declined to follow it on the basis that it was plainly wrong. It is unnecessary, for the purposes of the present proceedings, to express a concluded view whether National Australia Bank v Rusu ought be followed. In any event, I consider National Australia Bank v Rusu to have turned on its particular facts and circumstances. These circumstances included (as appears from Bryson J's reasons) that: the documents were apparently incomplete; they were sought to be used to establish a substantial liability; and the defendants were unrepresented, were able to speak no more than a little English and were assisted by their son in the proceedings. However, in order to understand the errors in the Magistrate's reasoning which led to her rejection of relevant, admissible evidence, it is necessary to consider National Australia Bank v Rusu in some detail.
3. In that case, the question was whether certain documents met the requirements of business records, not only as to their provenance (which was established by their production on subpoena) but as to whether they were prepared by someone who could be expected to have had personal knowledge of the facts contained therein (as required by s 69(2) of the Evidence Act). His Honour was not, in the circumstances of that case (set out above), prepared to draw such inferences from the documents themselves. Accordingly, his Honour rejected the tender.
4. His Honour said: "[28] So far as I am aware there is no judgment which has decided that under the Evidence Act 1995 the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena and by whom. . . . [34] If the court is to find a significant fact on which a large liability may depend, there is a need for the court to have some measure of confidence in the source of the court's belief that the fact exists. The court acts almost always on narrations which must have a human origin; not usually on the court's own knowledge or on states of fact which are taken to be incontestable. The balance of probabilities is not a demanding standard, as the possibility that the less probable state of fact may be the true one is very obvious, and makes civil justice very vulnerable to error. For the court to feel confident that it should act on any narration it is very important to have a human witness who has pledged, by oath or affirmation, that the narration is true: someone who is responsible for it. Business records may be incomplete; they often are. They record what there is perceived to be a business need to record, and that may be a small part or an oblique aspect of the objective event." [Emphasis added.]
5. Justice Bryson's dicta in National Australia Bank v Rusu at [28] and [34] (particularly the part in italics in the passage above) has been used in aid of various submissions to the effect that the authenticity of a document cannot be proved by an examination of the document; that a document "cannot prove itself"; and that documents must be verified or authenticated by live witnesses who can be cross-examined.
6. Justice Bryson's observations, which were apposite in the circumstances of that case, ought not be regarded as unqualified statements of general application. To read them in that way would be inconsistent with ss 58 and 183 of the Evidence Act. In these two provisions, Parliament has, in my view, evinced a clear intention that a document or thing sought to be tendered ought generally be examined before a ruling is made on an objection to its tender in order that all reasonable inferences can be drawn before the ruling is made. The inferences to be drawn include inferences as to identity and authenticity (s 58(1)); accordingly, in some cases, documents can "prove themselves".
7. What Bryson J actually said at [28] in National Australia Bank v Rusu was that his Honour had not located a judgment in which the form and contents of a document had been found to be sufficient to establish its authenticity, where the authenticity was disputed. As National Australia Bank v Rusu was decided in 1998, three years after the Evidence Act was passed, the absence of a judgment on the matter (particularly bearing in mind that unreported judgments were not then as readily available as they became, following the invention of the Internet) cannot be regarded as an indication that the proposition articulated (that the authenticity of a document could, in some circumstances, be established solely by its form and contents) was untenable.
8. Magistrate Huber appears to have taken from [28] in National Australia Bank v Rusu that she was not permitted to draw inferences from the IAVO that Constable McCarron had printed out from the police intranet that it corresponded with the order made by the Court and that it was, in fact, the IAVO. Her Honour also appears to have been under the misapprehension (which may have arisen from [34] in Bryson J's reasons) that she could not examine the bench sheet or hear the tape unless there was a live witness, such as the Registrar, to depose as to their provenance. This misapprehension arose, in my view, from a misunderstanding of National Australia Bank v Rusu and a failure to give effect to the Evidence Act and in particular s 58.
9. Unlike the bank statements in National Australia Bank v Rusu, none of the three documents in the present case (the IAVO, the bench sheet or the tape) was part of a series Each of them had an independent existence and, in the case at least of the IAVO and the bench sheet, their provenance had been established by Constable McCarron's oral evidence. There was, accordingly, no basis to reject them since they were plainly relevant to the offences charged, and admissible.
10. The order itself which Constable McCarron had downloaded and compared with the order on the court file was the best evidence of the IAVO. The bench sheet corroborated its making. It was not necessary for Constable McCarron to be called to prove the IAVO. Indeed, the prosecution could have asked for the court file for the IAVO to be provided to the Magistrate for the purpose of the hearing of the charges against the defendant and called for the IAVO from that file to be tendered in the prosecution case. The IAVO bore the seal of the Local Court of New South Wales and was, by operation of s 150(1)(f) of the Evidence Act, deemed to have been duly sealed.
11. Magistrate Huber was also in error in refusing to examine the bench paper or listen to the tape. Her Honour appeared to be under the misapprehension that she could not examine the bench sheet or hear the tape before deciding whether these documents were admissible. The process of determining the relevance and admissibility of evidence may require the tribunal of law to examine the document or thing sought to be tendered for the purposes of drawing inferences which may establish its relevance or admissibility. Her Honour was entitled, under s 58 of the Evidence Act, to do so in order to determine what reasonable inferences could be drawn from such examination. In the context of the tender, her Honour was obliged to examine the documents before ruling on their admissibility. Had her Honour examined the bench paper, she would have seen that it was what it purported to be, and admitted it.
12. The approach which I have set out above is consistent with the orthodox and well established approach outlined by Perram J in ACCC v Air New Zealand (No. 1) in a series of propositions at [92].

Conclusion

1. The process of tendering the IAVO for the purpose of establishing that an AVO had been made and for the purpose of proving (at least on a prima facie basis) that the defendant was present in court ought to have been a straightforward one, having regard to ss 58 and 60 of the Evidence Act. In the court below, it went awry for the reasons given above. The matter must be remitted.

Costs

1. The plaintiff sought an order for costs on the basis that costs ought follow the event. The defendant resisted an order for costs on the basis that it had conceded in this Court that the Magistrate was in error and ought to have admitted two out of the three documents (the IAVO and the tape); and that it had consented to an order that the appeal be allowed and the matter remitted to the Local Court.
2. In the alternative, Ms Webster SC submitted that, if an order for costs was made against the defendant, a certificate ought be granted under the Suitors Fund Act 1951 (NSW).
3. I consider that the plaintiff is entitled to an order for costs to reflect the result of the proceedings.

Whether a certificate under the Suitors' Fund Act ought be granted

1. This Court has power under s 6(1)(a) to grant a certificate under the Suitors' Fund Act. Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P outlined the applicable principles that guide the interpretation of s 6. His Honour identified the purpose of the statute as: "the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from. . ."
2. Much of the argument in the Local Court concerned s 69 of the Evidence Act. For reasons already given I do not need to consider s 69 since the second ground was not pressed. The conduct of the defendant's representative in the Local Court in persisting in the objection to the IAVO in circumstances where its provenance had been established by Constable McCarron led the Magistrate into error. Moreover, the defendant's legal representative's insistence on the need for an affidavit from a Registrar was misconceived and based on a misreading of National Australia Bank v Rusu.
3. The role of a Magistrate is undoubtedly demanding. Quick decisions, including rulings on evidence, are required to be made in circumstances where the facilities and assistance to hand are not always as comprehensive as in superior courts. The IAVO was plainly relevant and admissible. Once it was admitted, it was admitted for all purposes. The statement contained in it that the defendant was present in court could be used for the hearsay purpose of proving that the defendant was actually present in court on 4 December 2014. The defendant properly conceded all of these matters in this Court, having consistently contested and denied them in the Local Court. Her Honour was entitled to greater assistance.
4. Having regard to the conduct of the defendant's legal representative in the Local Court, I do not consider it appropriate to certify for the (albeit limited) recoupment of the costs out of a public fund.

Order

1. For the foregoing reasons I make the following orders: 1. Appeal allowed. 2. Set aside the order of Magistrate Huber made on 8 May 2015 at the Waverley Local Court dismissing proceedings against the defendant for the offences of knowingly contravene prohibition or restriction in an apprehended violence order (eight counts). 3. Remit the matter to the Local Court to be dealt with according to law. 4. Order the defendant to pay the plaintiff's costs of the proceedings. 5. Decline the defendant's application for a certificate under s 6 of the Suitor's Fund Act 1951 (NSW).

Amendments 26 November 2015 - [48] - "three documents" changed to "two out of the three documents" 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: 26 November 2015