Are the representations admissible to prove their truth?
5 The general rule (the hearsay rule) is that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed the person intended to assert by the representation (an asserted fact): Evidence Act, s 59(1) and (2). There are, however, numerous exceptions to the rule.
6 The argument advanced on behalf of Mr Greiss was that the representations were contained in documents which were part of the business records of the NSW Police and the hearsay rule does not apply to the documents so far as they contain the representations, relying on s 69(2). The respondents argued that the hearsay rule does apply because the exception in s 69(2) does not apply, relying on s 69(3).
7 Section 69 relevantly reads as follows:
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.
…
(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).
8 The Dictionary to the Evidence Act defines an "Australian law" as a law of the Commonwealth, a State or a Territory; an "Australian or overseas proceeding" as "a proceeding (however described) in an Australian court or a foreign court"; and a "criminal proceeding" as "a prosecution for an offence" including a committal or sentencing proceeding, a proceeding relating to bail, but excluding certain taxation offences.
9 There was no dispute that the documents were business records falling within the terms of s 69(1). Nor was it disputed that the representations were made in circumstances covered by s 69(2). The respondents contended that subs (2) does not apply because the representations were obtained in connection with an investigation relating to a criminal proceeding.
10 Mr Greiss argued that s 69(3)(a) does not apply for two reasons: first, because this paragraph was concerned with civil proceedings and, inferentially, the statements were not prepared or obtained for the purpose of civil proceedings; and second, because the contemplation that is relevant is that of the person who prepared the representation (Australian Competition & Consumer Commission v Advanced Medical Institute (No 2) [2005] FCA 1357 at [23] per Lindgren J) and that person did not have any proceedings in contemplation. He argued the exception in s 69(3)(b) does not apply because the investigation "documented by" these statements resulted in the police issuing an infringement notice to Mr Greiss on 11 May 2021 for offensive conduct and the issuing of an infringement notice is not a criminal proceeding because it is not a prosecution for an offence.
11 Mr Greiss contended that the burden of proving that s 69(3) applied rests with the respondents and the respondents did not argue otherwise. While the contention may be open to doubt (see Averkin v Insurance Australia Ltd (2017) 92 NSWLR 68 at [8] per Basten JA; [117] per Leeming JA), in the absence of argument it would be inappropriate to proceed on any other basis.
12 For the reasons that follow, I am satisfied that the representations are inadmissible under s 69(3)(b). It is unnecessary to decide whether s 69(3)(a) also applies.
13 The question here is whether the statements were made in connection with an investigation relating to a criminal proceeding as I was not taken to any evidence which indicates that the representations were made in connection with an investigation that led to a criminal proceeding.
14 In order for s 69(3)(b) to apply, the criminal proceeding need not be in existence and, indeed, may never eventuate, but the investigation in connection with which the representation was made must be extant at the time it was made: Averkin at [1] (McColl JA), [2] (Basten J); [115]-[118] (Leeming JA).
15 The argument for Mr Greiss proceeded on the assumption that there was no extant investigation. The premise for the argument was that the only investigation (within the meaning of s 69(3)(b)) that the police conducted was an investigation into the behaviour that culminated in the issue of the infringement notice. The documents containing the relevant representations indicate otherwise.
16 First, they were prepared days after the infringement notice was issued. It follows that, contrary to Mr Greiss's submission, the investigation with which these statements are concerned did not result in the issue of the infringement notice. Self-evidently they were related to an investigation into matters that were not the subject of the infringement notice.
17 Second, on their face they were statements of prospective witnesses in a criminal proceeding. Each began with the standard opening paragraph of all police statements in such proceedings:
This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.
18 Third, Mr Marsay's statement records that he was asked whether he had witnessed a spitting incident in relation to the victim or any other person and his response to that question. The statement also details evidence Mr Marsay would give if required in relation to what was referred to in this proceeding as a melee involving the media and supporters of the man who had been sentenced on 6 May 2021.
19 It is common ground that the infringement notice was not issued in relation to Mr Greiss spitting at or in the victim's direction. The offensive conduct to which it related occurred after the victim left the court precinct.
20 The context in which the representations were made is apparent from emails sent by the detective who witnessed each of the statements. That was Detective Senior Constable (DSC) Duncan Butcher.
21 On 10 May 2021, before either statement was made, DSC Butcher sent an email to Detective Inspector (DI) Mitchell Dubojski in which he referred, amongst other things, to an episode after the victim left the court precinct. With respect to that episode, he wrote that:
Upon the sheriffs walking back, the POI was standing in an area described as " Front seating area" and he spits in general direction of Andrew GIRKIN who asks if that was at him. The Poi says words to the effect of: " That's towards you, you fking dog ct for escorting an Escort".
Mr HENDRICKSE believes the act of spitting itself will not be depicted on CCTV but the interaction (conversation) between Officer GIRKIN and POI will be.
22 On 18 May 2021, DSC Butcher forwarded Mr Marsay's statement by email to Detective Sergeant Timothy Pooley in Parramatta, copied to DI Dubojski, and advised him that he needed a statement from Andrew Girkin, a sheriff's officer, who was said to be a "direct witness" to a "spitting incident outside Newcastle Court and then with the media push and shove" which led to "an allegation of assault from one of the media". DSC Butcher went on to identify the areas he wished the statement to cover.
23 The phrase "relating … to", used in s 69(3)(b) is of wide import. As McHugh J explained in O'Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356 at 376 of the substantially identical expression "in relation to":
The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.
24 The parties did not submit that there was anything in the context or drafting history of the Evidence Act to suggest a legislative intention that the phrase "relating … to" in s 69(3)(b) be given any different construction. As Leeming J indicated in Averkin at [113]-[114], all that the provision requires is "a link between the representation and litigation", which need not be in existence at the time and may never eventuate.
25 Here, it is plain that the representations were made in connection with an extant investigation and there is an obvious relationship between that investigation and a criminal proceeding. If the investigation produced evidence that there had been one or more assaults, then a criminal proceeding was reasonably likely if not inevitable.
26 I therefore conclude that the representations upon which Mr Greiss wishes to rely were made in connection with an investigation relating to a criminal proceeding.
27 But that is not the end of the matter.
28 Section 60(1) of the Act provides that 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. Section 60(2) makes it clear that this section applies even if the person who made the representation had no personal knowledge of the asserted fact. In other words it is not limited to first-hand hearsay. However the Court has a discretion to exclude such a representation or to limit its use to the non-hearsay purpose or purposes. The respondents urged the Court to exercise either discretion in their favour.