[2015] ACTSC 351

The tender by the Plaintiff of the photographs at pages 35-131 of Exhibit 1 is rejected.

EVIDENCE - Evidence Act 2011 (ACT) s 69 - business records exception to hearsay rule - photographs sought to be tendered in personal injury proceeding without calling person who took photographs - photographs taken by police at place of and soon after motor vehicle accident - photographs taken in contemplation of or in connection with an Australian proceeding or in connection with an investigation relating to a criminal proceeding - tender of photographs rejected

Evidence Act 2011 (ACT) ss 63, 64, 69, 142

Lewincamp v ACP Magazines Ltd [2008] ACTSC 69

Nye v New South Wales [2002] NSWSC 1268; (2002) 134 A Crim R 245

Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984

S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Company of Australia Ltd [1986] NTSC 15; (1986) 82 FLR 130

Street v Luna Park Sydney Pty Ltd [2007] NSWSC 695

Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512

Vitali v Stachnik [2001] NSWSC 303

Walsh v Walgett Shire Council [2014] NSWSC 812

Insurance Australia Limited trading as NRMA Insurance (Second Defendant)

Mr A Black SC, Mr A Muller and Mr D Crowe (Plaintiff)

Mr J Poulos QC and Mr B Wilson (First and Second Defendants)

1. The plaintiff has sought to tender photographs appearing at pages 35 to 131 of exhibit 1. The defendants have objected on the basis that the documents are hearsay.

2. The documents are photographs which were produced from the records of the Australian Federal Police. They include photographs which clearly were taken at about the time of the accident the subject of these proceedings as the photographs show the plaintiff being treated by ambulance officers next to the vehicle which he collided with and his bicycle lying on the ground nearby. They also record some aspects of the investigation into the circumstances of the accident, for example, marking of the lengths of skid marks made by the first defendant's vehicle.

3. The basis on which the plaintiff tenders the documents is that they fall within the exception to the hearsay rule in s 69 of the Evidence Act 2011 (ACT) (the Act) because they are records of the Australian Federal Police which is a business within the extended meaning of that term in the Act.

4. Senior counsel for the defendants submits that the documents are not subject to the exception in s 69 because s 69(3) prevents their admission because the representation in each photograph:

(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. Although it was not formally proved, the argument on the objection proceeded on the basis that there was no issue that the photographs in question were produced under subpoena from the records of the Australian Federal Police and that the photographs had been taken by one or more as yet unidentified members of the Australian Federal Police.

6. It is important to note that the photographs are sought to be tendered at a point in time where no witness has given evidence and expert reports have only been admitted subject to resolution of any objections to their contents. Thus it is not a case where there is some person, present at the scene but not necessarily the taker of the photographs, who can say that what is depicted in the photographs is what they saw at the time.

7. Further I have not at this stage given any consideration to:

(a) the potential application of s 64 (evidence of previous representations where the maker is available);

(b) the potential application of s 63 (evidence of previous representations where the maker is not available);

(c) whether or not the documents may be admissible because they formed part of the basis on which expert evidence in the proceedings has been given.

8. Finally, the course of the argument on the objection made it clear that the reason that the defendants object to the tender is not because there is any doubt:

(a) of the authenticity or reliability of the documents; or

(b) that they were taken on the day of or shortly after the accident; or

(c) as to what is depicted in the photographs.

9. Instead they are objected to because, having regard to the contents of other police documents that are available (including a summary of police activities in exhibit VD1), the defendants anticipate that evidence given by the police who investigated the incident and took the photographs will be favourable to their case and wish to force the plaintiff into a position where he is obliged to call those police and hence enable the defendants to elicit evidence from those police in cross-examination.

10. The objection, therefore, does not arise out of the concerns that led to the insertion of the qualification in s 69(3) of the Act, namely, "to prevent the introduction through this exception to the hearsay rule of hearsay material which [was] prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings": Vitali v Stachnik [2001] NSWSC 303 at [12].

11. Each photograph is a document in that a "photograph" is within the definition of document in the Dictionary to the Act.

12. Each photograph formed part of the records of a business in the extended sense contemplated by paragraphs (b) and (d) of clause 1(1) of the definition of business in Part 2 of the Dictionary, namely, an activity engaged in or carried on by the Crown or an activity engaged in or carried on by a person holding office or exercising power under an Australian law.

13. Each document contains a previous representation because the document was "made or otherwise produced by [a] person" when that person took the photograph: see Dictionary Part 2 clause 6.

14. The photographs contain representations made by a person, the photographer, who had or might reasonably be supposed to have had personal knowledge of the asserted facts, namely, the circumstances depicted in the photographs: s 69(2)(a).

15. As a consequence, subject to the operation of s 69(3), the hearsay rule does not apply to the photographs: s 69(2).

16. Section 69(3) provides:

(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.

17. Questions relating to admissibility must be decided on the balance of probabilities: s 142. In relation to s 69(3) it is necessary to determine who bears the onus of proof. In Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 McDougall J expressed the view that s 69(3) should be construed as an exception to the operation of s 69(2) rather than a further condition of admissibility. The result of that approach would be that the party opposing admissibility would bear the onus of showing that the exception was made out. That opinion was influenced by the approach taken by Maurice J in S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Company of Australia Ltd [1986] NTSC 15; (1986) 82 FLR 130 at 152-153. Although that case was dealing with provisions that were slightly differently structured to s 69 they were in similar terms. Maurice J relied upon the decision in Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519-520 to the effect that where an enactment:

... expresses an ... exclusion which assumes the existence of the general or primary grounds from which the ... right arises but denies the right ... in a particular case by reason of additional or special facts, then ... such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.

If the evidence on the point is peculiarly within the knowledge of the party seeking to have the statement admitted, then not much will be required from the party objecting to it to transfer the evidentiary burden to his opponent.

19. The 11th edition of Odgers Uniform Evidence Law at [1.3.3070] refers to Rickard Constructions v Rickard Hails Moretti but not to any later case.

20. For the purposes of this ruling I follow the decision in Rickard Constructions v Rickard Hails Moretti which was made on a relevantly identical provision. Therefore the onus of proving the exception lies on the defendants. As it turns out in the present case it is not necessary to resolve the issue by reference to which party bears the onus.

21. A useful summary of the requirements of s 69(3)(a) is provided in the decision of Brereton J in Street v Luna Park Sydney Pty Ltd [2007] NSWSC 695 at [9]- [12]:

1. From this survey of the authorities, the following conclusions may be drawn. First, the purpose of s 69(3) is to exclude from admissibility, in circumstances that they may not be tested because of their hearsay nature, previous representations contained in business records which were made in an atmosphere or context that could affect their impartiality by reason of possibly being influenced by interest in the outcome of legal proceedings [Vitali v Stachnik]. Secondly, the words "in contemplation of" add something to "for the purpose of" [S & Y Investments]; the additional words "in connection with", in the 1995 Act, must add something more. The evolution and structure of the section (which by referring not only to "for the purpose of" but adding "in contemplation of" and "in connection with" seeks to widen its reach; the naturally wide terms "in connection with"; and the balance of authority [Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 425; Vitali v Stachnik; Atra v Farmers & Graziers] is against adoption of a narrow approach to the construction of s 69(3).

1. Thirdly, a representation is made or obtained "in contemplation of" legal proceedings not only if the prospect of proceedings is the occasion for the representation being made [S & Y Investments], but also if legal proceedings or the prospect of them is "in mind" when the representation is made or obtained [Atra v Farmers & Graziers]. An act is done is contemplation of something if that thing is in the mind of the actor when it is done.
2. Fourthly, an act is done "in connection with" something if there is a link or a nexus, other than a remote or tenuous one, between the act and the thing [cf Nye].
3. Fifthly, no question of dominant or substantial purpose arises; once any aspect of s 69(3)(a) is attracted, it matters not that the dominant or substantial purpose of making or obtaining the representation in question was unconnected with legal proceedings.

22. In relation to s 69(3)(b) Besanko J in Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 at Annexure 2 [29] said:

1. ... The important issue is whether that investigation is one "relating or leading to a criminal proceeding", as the terms of subs (3)(b) require. Where, as in this case, no criminal proceeding ever eventuates, it makes little sense to describe an investigation as relating or leading to a criminal proceeding. That said, having regard to the purpose of the section, it may be unduly restrictive to require there to have been an actual criminal proceeding. The purpose of this exception to the business records exception is to exclude representations made in business records which might have a self-serving motivation such as to undermine their reliability. One can imagine circumstances where such a self-serving motivation exists in connection with an investigation, though the investigation never in fact leads to a criminal proceeding. But if an investigation does not in fact relate or lead to a criminal proceeding, it must be of a type such as to relate or lead, in the ordinary course of events, to a criminal proceeding. Police investigations would fall within this, but the investigation in the present case did not.

23. At Annexure 2 [30] his Honour referred to Nye v New South Wales [2002] NSWSC 1268; (2002) 134 A Crim R 245 for the proposition that it is not sufficient to show of an investigation that a criminal proceeding was one possible outcome. That case involved representations made to a Royal Commission which were held not to fall within s 69(3)(b).

24. In Walsh v Walgett Shire Council [2014] NSWSC 812 at [12]- [21] McDougall J held, following the approach of Besanko J in Lewincamp v ACP Magazines Ltd, that in order for s 69(3) to apply it was not essential that a criminal proceeding actually be brought. His Honour concluded at [20]:

Of course, there are many investigations that do not lead to a criminal proceeding; and, a fortiori, that do not in that sense relate to a criminal proceeding. But it seems to me that where an investigation is carried out to see whether there has been a contravention of a legislative provision, which contravention (if it occurred) would be attended by criminal consequences, the investigation is one that could be said, in the ordinary use of the English language, to be one at least relating to a criminal proceeding in relation to that contravention.

25. What can be said in the present case about why the photographs were taken? Exhibit VD 1 is a document produced from the records of the Australian Federal Police headed "Summary - Case 4865676". It provides basic details of the incident and then has a series of headings:

(a) "Allegation/Incident Description";

(b) "Offences Disclosed: No Offences Disclosed";

(c) "System Results: None";

(d) "Result Text".

26. Under the "Result Text" heading there is a description of the incident and the investigations subsequently undertaken by the police. It discloses that police formed the view in November 2012 that the first defendant, Mr El-Dik, "took every precaution when reversing out his driveway" and that the plaintiff, Mr Hendricks, "was riding an electric powered bicycle which exceeded the legal allowance of 200 watt thereby committing traffic offences". However the police decided that no action would be taken against the plaintiff due to the severity of his injuries.

27. There is no reference to the taking of the photographs anywhere in the document.

28. It is clear that the document was prepared over a period of time. The accident occurred on 20 January 2012. At least some of the document is likely to have been prepared or created at about that date. The entry from which I have just quoted is an entry dated 16 November 2012. The final entry is dated 11 March 2013 and indicates that the "[e]xhibit of electric bicycle" was returned to the plaintiff. It is therefore difficult to say that the intention in relation to criminal charges expressed in November 2012 applied to whomever took photographs in January 2012.

29. At the stage when the photographs were taken no particular proceeding would have been identified. Proceedings might have been brought against the plaintiff or the first defendant or, conceivably, both. However, when one asks the question why the police officers took the photographs one is driven to the conclusion that they were taken in order to provide an evidentiary basis for criminal proceedings (or possibly coronial proceedings in the event that the injured person, the plaintiff, ultimately died) in the future. The fact that the photographs were taken in the context of an evidence gathering process is reinforced by:

(a) the terms of exhibit VD 1 which make it clear that the plaintiff's bicycle was seized at the time by police and only returned in March 2013 after a decision was made in November 2012 to not bring any charges; and

(b) what is shown in the photographs themselves which is consistent with a methodical recording of items present at the scene and the documenting of aspects of the investigation such as the location and dimensions of skid marks.

30. There appears to me to be no relevant difference between the photographs that were taken and representations as to the appearance of the scene recorded by a police officer in a notebook at the scene of an incident which may result in criminal charges. Had police officers instead of taking photographs recorded what they observed in a police notebook it would be clearer that the notebook would not be admissible in a subsequent criminal trial unless the police officer was called to give evidence. In my view for the purposes of s 69(3) it makes no difference that instead of a statement what is sought to be tendered in the present case are photographs, even though the potential for unreliability or self-serving statements is much less with photographs.

31. Similarly for the purposes of s 69(3) in my view it makes no difference that the case in which they are sought to be tendered is not the criminal proceedings which were in contemplation when the photographs were taken.

32. There may be a category of accident which the police investigate whether or not any criminal (or coronial) proceedings are contemplated. However there was no evidence about that for the purposes of the present ruling.

33. On the evidence available and on the balance of probabilities the photographs were taken by the police in the context of an investigation into the circumstances surrounding the incident that occurred on 20 January 2012 which was undertaken for the purpose of proof of criminal charges if, at the conclusion of the investigation, the police considered such charges to be warranted. To adapt the words of Besanko J in Lewincamp v ACP Magazines Ltd even though the investigation did not in fact relate or lead to a criminal proceeding it was "of a type such as to relate or lead, in the ordinary course of events, to a criminal proceeding".

34. In those circumstances the requirements of s 69(3) are established. Dealing with the matter on the balance of probabilities I am satisfied that although there is at present no direct evidence of the purpose for which the photographs were taken it is more likely than not that the photographs:

(a) were taken (and hence the representations comprised by the photographs "obtained") in contemplation of or in connection with an Australian proceeding; or

(b) were taken (and hence the representations comprised by the photographs "made") in connection with an investigation relating to a criminal proceeding.

35. As a consequence the order that I make is that the tender by the plaintiff of the photographs at pages 35-131 of exhibit 1 is rejected.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.