Greiss v Seven Network

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.

Should the Court exercise its discretion in favour of the respondents? 29 Section 135 gives the Court a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be (a) unfairly prejudicial to a party, (b) be misleading or confusing, or (c) cause or result in undue waste of time. 30 Section 136 gives the Court a discretion to limit the use of evidence if there is a danger that the particular use of the evidence might be (a) unfairly prejudicial to a party or (b) misleading or confusing. 31 After hearing argument, I was not satisfied that the probative value of the evidence was substantially outweighed by any of the dangers to which s 135 refers and admitted into evidence as exhibits P and Q the representations, together with certain contextual paragraphs of the two statements. But I reserved the question of whether an order should be made under s 136 to limit their use to the non-hearsay purposes identified by Mr Greiss's counsel. 32 Different questions are raised by the two sections. The test for exclusion of the evidence is more onerous than the test for limitation. Section 135 requires the Court to assess the weight that can be attached to the evidence and balance that against certain dangers that could arise if the evidence is admitted. In contrast, all that is required to enliven the Court's discretion under s 136 is a danger that a particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing. 33 As Sackville J observed in Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348; (2005) 224 ALR 317 at [16], the fact that the power is enlivened does not require its exercise. The discretion is to be exercised judicially, in the light of the circumstances of the particular case. 34 So is there a danger of unfair prejudice if the evidence in question were received as proof of the truth of their contents or a danger that the evidence might be misleading or confusing? 35 What is meant by "unfair prejudice"? 36 Hunt AJA observed in Ainsworth v Burden [2005] NSWCA 174 at [99]: It is not unfairly prejudicial to a party if the material tendered by his opponent merely proves or strongly supports the opponent's case. The phrase "unfairly prejudicial" or the cognate phrase "unfair prejudice" is used not only in s 135 but also in s 136 and s 137, and the meaning to be given to each of those phrases must be the same - whether or not a weighing exercise is contemplated: Regina v BD (1997) 94 A Crim R 131 at 139. The prejudice to which each of the sections refers is not that the evidence merely tends to establish the case of the party tendering it; it means prejudice which is unfair to the other party because there is a real risk that the evidence will be misused by the jury in some unfair way: DPP v Boardman [1975] AC 421 at 456; The Queen v Duke (1979) 22 SASR 46 at 47-48; Scott v The Queen [1989] AC 1242 at 1258-1259; Regina v Masters (1992) 26 NSWLR 450 at 479; Pfennig v The Queen (1995) 182 CLR 461 at 487-488, 528; Regina v BD at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98]. See also ALRC 26, vol 1, pars 644, 957. 37 It was submitted on behalf of Mr Greiss that there was no unfair prejudice because the respondents could have spoken to Mr Marsay and Mr Weaver or could have sought an adjournment and that the documents are not misleading or confusing but "quite straightforward as to what occurred at the relevant time". 38 I am unpersuaded by either submission. 39 First, the question is not whether there is unfair prejudice but whether there is a danger of unfair prejudice. 40 Second, it does not follow from the truism that the respondents could have spoken to Mr Marsay and Mr Weaver that there is no unfair prejudice to the respondents. The purpose of the tender is to defeat the respondents' defences, each of which require them to prove the truth of the imputations. There is authority for the proposition that a party may be unfairly prejudiced if it is unable to test the truth of a representation by cross-examination: see Roach v Page (No 11) [2003] NSWSC 907 at [19]-[34]. See also Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55] (Giles JA), [78] (Heydon JA); [79] (Grove J). 41 In Roach at [34] Sperling J observed that the cases to which he referred in these passages "provide a body of judicial opinion that the inability of the opposite party to test a representation by cross-examination of the person who made the representation may legitimately be held to constitute 'unfair prejudice' notwithstanding that the evidence would otherwise be admissible to prove the truth of the representation under an exception to the hearsay rule". In Quick v Stoland Pty Ltd (1998) 87 FCR 371, to which Sperling J also referred, Branson J observed at 377-8 that in cases where there is a genuine dispute as to the relevant facts, it might be expected that a court would ordinarily limit the operation of s 60 by exercising the discretion in s 136. In the same case Finkelstein J said at 382 that "where the hearsay involves 'facts' that are in conflict or 'facts' that are unreliable it is quite unsatisfactory for those 'facts' to be proved by the operation of s 60" and that problem can be overcome by an order under s 136. 42 In Papakosmas v The Queen (1999) 196 CLR 297 at [93] McHugh J speculated that the judges in some of the cases reviewed by Sperling J in Roach were "too much influenced by the common law attitude to hearsay evidence" and had given insufficient weight to the change effected by the Evidence Act. But as Sperling J pointed out at [49], the statements made by McHugh J in Papakosmas do not appear to have had much effect on the course of authority in circumstances where the opposite party is not able to test the truth of the representation. 43 Sperling J concluded in Roach at 74 that, where the maker of the representation is available or not shown to be unavailable and the party tendering the evidence does not call that person, it is "legitimate" to take that circumstance into account in favour of a finding of unfair prejudice. His Honour went on to say: (h) Sections 60 and 77 give rise to special considerations. Unlike other exceptions to the hearsay rule and the opinion rule, it is not the objective of those sections to facilitate proof. They are there to avoid a distinction having to be made about evidence being used for one purpose and not for another. Where a document goes into evidence because the existence of the document is a relevant fact, the operation of these sections without a limiting order under s 136 may have a consequence which the legislature cannot have intended. Any representation in the document which is probative of some other element in the tendering party's case becomes evidence of the content of the representation. Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness. (i) Where ss 60 or 77 operate and the author of the document is not called, the truth of facts stated or the efficacy of the opinion expressed cannot be tested by cross-examination. The consequence of the operation of ss 60 or 77 is then potentially the more unfair on that account. 44 Here, there is no reason to think that the makers of the statements were not available. Certainly Mr Greiss did not establish they were unavailable. He was the one seeking to rely on the truth of the representations. The fact that they might have been available to the respondents is beside the point. 45 On the other hand, where the tribunal of fact is a judge, not a jury, the circumstances in which there will be a danger of unfair misuse must be vanishingly small. Thus, as Sackville J observed in Seven Network at [21], the discretion to limit the use of evidence will more readily be exercised where the proceedings are tried by a jury as a judge is likely to give less weight to evidence untested by cross-examination than a jury would. 46 The relevant representations by Mr Weaver are contained in paras 6 and 7. They read: 6 At the conclusion of the sentencing Acting Sergeant GIRKIN and I escorted the victim in the substantive matter away from the court without incident. There was no interaction with her and the [group of people supporting the prisoner]. 7 After the (substantive) victim in the matter had safely left the area, I walked back towards the court entrance. 47 It is difficult to know what to make of this. What did Mr Weaver mean by "without incident"? What would he have regarded as sufficient to constitute an "incident"? What did he mean by "no interaction"? Would he have considered a spit in the direction of the victim to amount to interaction with the victim anyway? Was he in a position in which he could have seen a spit in any event? It is no part of the respondents' case that the victim was struck by spittle. 48 Similar difficulties arise with Mr Marsay's representations. 49 The representations of Mr Marsay tendered by Mr Greiss are in para 7 that reads: The wife of [redacted] and his close family were removed to level 5. Around this time, the victim was removed from the building by Sheriffs Officer's without incident. Around this time I went to the ground floor. I was aware there was a large contingent of media at the front of the building. (Emphasis added.) 50 The respondents referred in argument to the following paragraph of the statement which was: Whilst at the front of the court I have heard a conversation from Acting Sergeant GIRKIN in relation to a "spitting incident" I did hear Sergeant GIRKIN say " Do we have a problem?" to a male with a beard - but initially I was unsure as to what the conversation was about ( I now know it was about a spitting incident). 51 Again, what did Mr Marsay mean by "without incident"? Was he reporting something he was told or something he saw? If he was reporting something he was told, was his informant a person who could have seen the incident the respondents allege occurred? The respondents submitted that the representations in his statement should not be admitted for a hearsay purpose because it is so unclear what he heard or from whom and where he was at any relevant time. 52 Mr Marsay did not suggest that he was one of the sheriff's officers who escorted the victim from the building. Indeed, it is common ground that they were Mr Girkin and Mr Weaver. Nor does Mr Marsay suggest that he was outside the courthouse at the time Mr Greiss is alleged to have spat at the victim. It is clear he did not witness a spit and he does not appear to have been in a position in which he could have done so. 53 What influence, if any, did DSC Butcher have over the contents of the statements? The respondents did not submit that they were prejudiced, let alone subjected to unfair prejudice, because they were unable to cross-examine Mr Marsay or Mr Weaver. Their arguments were focussed on the vagueness of the evidence and therefore to its probative value. They are able to advance the same arguments in their closing submissions. 54 Contrary to Mr Greiss's argument, however, the representations are not "quite straightforward as to what occurred at the relevant time". They raise more questions than they answer. If Mr Greiss carried the burden of proving that he did not spit at or in the direction of the victim I am inclined to think that the use of the representations to discharge that burden would have the potential to mislead. But he carries no such burden. The burden lies with the respondents to prove that he did. 55 In the result, I am not persuaded that Mr Greiss's use of the representations to defeat the respondents' defences (or any of them) might be misleading or potentially cause unfair prejudice to the respondents. Accordingly, I decline to make an order under s 136. It follows that the representations in exhibits P and Q are admissible for all relevant purposes. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.