Inspector Stephen Campbell v James Gordon Hitchcock

PROSECUTOR: Mr P Skinner of Counsel SOLICITOR: Mr A O'Dea Carroll & O'Dea Solicitors

LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson of Senior Counsel Mr A Moses of Counsel SOLICITOR: Mr J J Catanzariti Clayton Utz Lawyers

JUDGMENT: - 72 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR STEPHEN CAMPBELL v JAMES GORDON HITCHCOCK Prosecution under s16(1) and s50(1) of the Occupational Health and Safety Act 1983

INSPECTOR STEPHEN CAMPBELL v JAMES GORDON HITCHCOCK Prosecution under s15 and s50(1) of the Occupational Health and Safety Act 1983

INTERLOCUTORY JUDGMENT (NO. 2) [2003] NSWIRComm 148

1 This is the second interlocutory decision relating to the admissibility of evidence in proceedings concerning two prosecutions brought under the Occupational Health and Safety Act 1983. Both prosecutions relate to a fatal road accident involving two heavy vehicles on the Pacific Highway near Tyndale (outside of Grafton) on or about 1 September 1999, which caused the death of Darri Denis Haynes, the driver of prime mover registration number TWW240. The evidence sought to be adduced by Mr Skinner, counsel for the prosecutor, broadly relates to the movements of the prime mover registration number TWW240 prior to the accident, as recorded by the "Safe-T-Cam" system administered by the Roads and Traffic Authority of New South Wales. 2 The first prosecution is Matter No. IRC5660 of 2001. It charges that: On or about 1 September 1999 ("the said date") along the Pacific Highway at Tyndale in the State of New South Wales ("the said location"), James Gordon Hitchcock ("the Defendant") of 4 Woorin Close, Bomaderry in the State of New South Wales, being a director of Sayogi Pty Limited [ACN: 002 732 345] a corporation which contravened section 16(1) Occupational Health & Safety Act , 1983 , on the said date at the said location in that being an employer it DID FAIL to ensure that persons not in its employment, and in particular, Neville Walker, were not exposed to risks to their health or safety arising from the conduct of its undertaking, namely the carriage of freight, while they were at its place of work, the Defendant IS DEEMED to have contravened the same section pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983 . 3 The particulars of that charge are: 1) The Defendant was at all material times a director of Sayogi Pty Ltd (ACN: 002 732 345), a corporation whose registered office was at Arthur B Booth & Co, 52 Osborne Street, Nowra in the State of New South Wales ("the said corporation"). 2) At all material times the said corporation conducted business at 15 Concorde Way Bomaderry in the State of New South Wales as a road freight transport contractor under the name or style "Jim Hitchcock Haulage". 3) At all material times the said corporation carried on business in its 3. undertaking of the carriage of freight within Australia for fee or reward. 4) At all material times Darri Haynes was an employee of the said corporation. 5) On or about 1 September 1999, ("the said date"), Darry Haynes was driving a semi-trailer registration number TWW-240 along the Pacific Highway at Tyndale in the State of New South Wales ("the said location") when it collided with a semi-trailer driven by Neville Walker. Mr Haynes was killed when the cabin of his truck ignited following the crash. Mr Walker escaped injury, but was placed in risk of injury. 6) On the said date at the said location the said corporation did contravene Section 16(1) of the Occupational Health and Safety Act, 1983 ("the said Act") in that being an employer, it failed to ensure that persons not in its employment using the said Pacific Highway, and in particular, Neville Walker, were not exposed to risks to their health or safety arising from the conduct of its undertaking, namely the carriage of freight, while they were at its place of work, in that it: a) Failed to ensure that long haul truck drivers in its employ took sufficient rest stops whilst they were driving to counter fatigue, lack of alertness or drowsy driving. b) Failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation in respect of the conduct of the employer's undertaking of road freight haulage. c) Failed to ensure that driving hours of employees were properly recorded and audited to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. d) Failed to adequately warn employees of the hazards of fatigue involved in long haul truck driving. e) Failed to adequately warn employees of the hazards of taking drugs to counter fatigue whilst involved in long haul truck driving. f) Failed to provide such information, instruction, training and supervision of its employees as may be necessary to ensure the health and safety of persons other than its employees in the conduct of the employer's undertaking while they were at its place of work. g) Failed to provide a safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. As a result of the said failures, Neville Walker was placed at risk of injury. 1) The Defendant, being a director of the said corporation, is deemed to have contravened Section 16(1) of the said Act pursuant to Section 50(1) of the said Act. 4 In Matter No. IRC5661 of 2001, the prosecutor charges that: On or about 1 September 1999 ("the said date") along the Pacific Highway at Tyndale in the State of New South Wales ("the said location"), James Gordon Hitchcock ("the Defendant") of 4 Woorin Close, Bomaderry in the State of New South Wales, being a director of Sayogi Pty Limited [ACN: 002 732 345] a corporation which contravened Section 15(1) Occupational Health & Safety Act, 1983, on the said date at the said location in that being an employer it DID FAIL to ensure the health, safety and welfare of its employees at work and, in particular, Darri Haynes, the Defendant IS DEEMED to have contravened the same section pursuant to Section 50(1) of the Occupational Health and safety Act, 1983. 5 That charge is particularised as follows: 1) At all material times the defendant was a director of Sayogi Pty Ltd (ACN: 002 732 345), a corporation whose registered office was at Arthur B Booth & Co, 52 Osborne Street, Nowra in the State of New South Wales ("the said corporation"). 2) At all material times the said corporation conducted business at 15 Concorde Way Bomaderry in the State of New South Wales as a road freight transport contractor under the name or style "Jim Hitchcock Haulage". 3) At all material times the said corporation carried on business in its undertaking of the carriage of freight within Australia for fee or reward. 4) At all material times Darri Haynes was an employee of the said corporation. 5) On or about 1 September 1999, ("the said date"), Darry Haynes was driving a semi-trailer registration number TWW-240 along the Pacific Highway at Tyndale in the State of New South Wales ("the said location") when it collided with a semi-trailer driven by Neville Walker. Mr Haynes was killed when the cabin of his truck ignited following the crash. Mr Walker escaped injury, but was placed in risk of injury. 6) On the said date at the said location the said corporation did contravene Section 15(1) of the Occupational Health and Safety Act, 1983 ("the said Act"), in that being an employer, it did fail to ensure the health, safety and welfare at work of its employees at work and in particular, Darri Haynes, in that it:- a) Failed to ensure that long haul truck drivers in its employ took sufficient rest stops whilst they were driving to counter fatigue, lack of alertness or drowsy driving. b) Failed to ensure that driving rosters were prepared which properly or adequately took into account the effect of fatigue and sleep deprivation in respect of the conduct of the employer's undertaking of road freight haulage. c) Failed to ensure that driving hours of employees were properly recorded and audited to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. d) Failed to adequately warn employees of the hazards of fatigue involved in long haul truck driving. e) Failed to adequately warn employees of the hazards of taking drugs to counter fatigue whilst involved in long haul truck driving. f) Failed to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees. g) Failed to provide a safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving. As a result of the said failures, Darri Haynes was placed at risk of injury. 1) The Defendant, being a director of the said corporation, is deemed to have contravened Section 15(1) of the said Act pursuant to Section 50(1) of the said Act. 6 Objection having been foreshadowed to the admissibility of the evidence by Mr Hodgkinson, senior counsel for the defendant, a hearing in relation to admissibility was listed for 9 December 2002. Both the prosecutor and the defendant submitted that the 'objection' should be heard on the 'voir dire' (in part, because some evidence would be adduced which related only to the issue of admissibility). I adopted that course in the light of the concurrence of the defendant and the prosecutor, but I would not wish to be taken (without the benefit of further submissions) as accepting such a procedure as necessarily appropriate in trials of this nature. I have, therefore, had the benefit of hearing from Mr Skinner and Mr Hodgkinson orally and access to the transcript of 9 December. I have also examined the documents in question (without the defendant ultimately objecting to that approach). Leave having been granted, I have also had the opportunity to consider the parties' further written submissions. 7 Mr Richard Eric O'Neill of the Roads and Traffic Authority of New South Wales gave evidence on the voir dire. During the course of his evidence Mr Skinner tendered seven documents, which were marked as exhibits on the voir dire. Those documents shall for the purposes of this judgment shall be referred to as exhibits (although only some of these documents are sought to be tendered as exhibits in the trial). A brief summary of the documents marked as exhibits on the voir dire and their contents appears below: 1. Exhibit J: a Record of Interview of Mr O'Neill conducted by an Inspector of the WorkCover Authority of New South Wales, Amanda Templeton, on 5 September 2002. 2. Exhibit K: a statement in the form of an unsworn affidavit of Mr O'Neill dated September 2002. 3. Exhibit L: a Safe-T-Cam Sightings Report for Vehicle Registration Number TWW240 containing entries from 4 September 1998 to 1 September 1999. It should be noted that Mr Skinner stated that he was tendering the contents of the Safe-T-Cam database and that Exhibit L was, therefore, merely a copy/reproduction of the 'primary, electronic' document. 4. Exhibit M: a Safe-T-Cam Incident Report relating to an alleged infringement of the road rules by the driver of TWW240 on 2 April 1999, including 2 images of the vehicle. 5. Exhibit N; a Safe-T-Cam Map identifying Safe-T-Cam sites in New South Wales as at 30 May 2001. 6. Exhibit O; an email forwarded by Mr O'Neill to Mr Adrian O'Dea, solicitor, on 20 September 2002 with the subject line "Words for Safe T Cam" 7. Exhibit P; a photocopy of an image of vehicle TWW240 taken by the Safe-T-Cam at Harwood on 1 September 1999. 8 Although objection was originally taken by counsel for the defendant to the admissibility of all the documents on the voir dire, and objection was maintained in relation to the potentially prejudicial content of exhibit J, following my decision that it would be necessary to examine the contents of exhibit J in order to rule on the questions of admissibility, these objections were withdrawn and the documents which had been previously merely marked for identification were marked as exhibits on the voir dire without objection. The objection that was taken to the admission into evidence of Mr O'Neill's oral evidence was resolved by the prosecution not pressing that tender in the proceedings proper. However, Mr Hodgkinson had also articulated an objection to exhibit O (tendered only on the voir dire) based on relevance, which needs also to be decided.

9 The evidence sought to be adduced in the trial proper, giving rise to the question of admissibility to which this decision ultimately relates, is that contained within exhibits L, M and P. However, Mr Skinner limited the tender in relation to each of these exhibits. Save for two particular entries on 2 April 1999, the prosecutor sought to restrict the basis for the tender of the entries within exhibit L falling within the period prior to Mr Haynes' employment with Sayogi Pty Ltd, which, it would appear, commenced on 8 July 1999 (that is, roughly the first two thirds of the report, from 4 September 1998 to 7 July 1999 inclusive). These entries were tendered, it was submitted by the prosecutor, for completeness - to show the entirety of the record kept by the Roads and Traffic Authority in the Safe-T-Cam database and to ensure the tender was not misleading. They were not tendered for any other factual purpose. The prosecution tendered the balance of exhibit L (with entries from 10 July 1999 to 1 September 1999) and the entries on 2 April 1999 for all purposes, that is in the trial, to demonstrate how the system worked. The two entries for 2 April 1999 correlated to exhibit M and, concerned an alleged infringement on 2 April 1999 (that is, an infringement occurring prior to the deceased's employment). Nevertheless, according to the prosecution, when taken in conjunction with exhibit M, the entries for 2 April 1999 in exhibit L were capable of demonstrating the system's operation. Exhibit P related to the final entry in exhibit L on 1 September 1999, the day of, or the day immediately prior to, the accident. Both exhibits M and P contained digital images (along with other data) and were tendered to demonstrate how the Safe-T-Cam system operated.

10 The remaining evidence, including the oral evidence provided by Mr O'Neill on 9 December 2002, was only tendered to prove matters relevant to the admissibility of the principal documents. That is, the tender of the remaining exhibits and the oral testimony was limited to the voir dire.

11 The issues raised by the defendant as part of its objections to these exhibits fell into three broad areas. The first area concerned the authentication or proof of contents of the documents. Counsel for the defendant described this as a "threshold" issue; an onus necessarily discharged by the moving party in order to found admissibility per se (prior to consideration of other questions of admissibility) and submitted that the contents of exhibits L, M and P had not been, and could not be, properly authenticated. The defendant submitted that a document's contents ought not to be taken to prove its authenticity without further proof. Since these documents were produced by a computer and a computer cannot verify for a court, a human must, in order to authenticate the documents. No appropriate person had been brought before the court to perform that task. This contention was argued on two levels. Firstly, Mr O'Neill had not seen exhibit L prior to it having been shown to him so was not in a position to verify that each entry in L was, in fact, a 'business record' held by the RTA. Secondly, Mr O'Neill had not seen images supporting or evidencing the verisimilitude of the majority of the records, because they were not available, having been automatically deleted off the Safe-T-Cam database after 12 months. If the supporting proof was not available, the entries simply were not capable of being verified as true and must not be admitted.

12 Consideration of this contention gave rise to a series of subsidiary questions raised by the defendant and the prosecutor, each going to that issue, namely: whether s48 of the Evidence Act 1995 ("the Act") applied; if so, how evidence produced by a device (such as evidence produced by or from a computer as described by s48), was to be authenticated; the extent of the onus to prove the contents of such documents (and, specifically, was the prosecutor required to prove that the contents of the document were true); whether the presumption in s147(2) of the Act applied to the evidence; the scope of the phrase 'in contemplation of proceedings' in s147(3) of the Act; whether such evidence as was contemplated in ss170 and 171 of the Act had been provided to support the tender of the documents in question; and, finally, whether the onus had been discharged by the prosecutor in this case. There was also a proposition advanced late by Mr Hodgkinson, in further written submissions, that the question of the material's authenticity should not be determined under ss48, 147, 170 & 171 of the Act, but rather under ss59 and 69. This gave rise to the further questions: if s48 of the Act did not apply, did ss59 and 69 apply? If ss59 and 69 did not apply, what was the relevant law?

13 The second area concerned the relevance of the evidence to the proceedings. The parties reserved positions regarding the relevance to the proceedings of entries within exhibit L that were inside the employment period but not on 1 September 1999. According to the defendant, these entries were not relevant to the charge. An objection was pursued as to relevance in relation to entries falling outside the employment period. That is, the question of relevance was pursued with respect to all of the entries in exhibit L prior to 8 July 1999 and with respect to the contents of exhibit M. The defendant reserved his position on the question of relevance as to the balance of exhibit L. That aspect of the objection would be revisited at a later stage of the proceedings determined by the Court.

14 The remaining issue concerned an entreaty by the defendant that the Court should exercise its discretion (pursuant to s135 of the Act) not to admit the evidence on the basis of what has been described as its exceedingly prejudicial nature.

Relevant Legislation 15 In relation to the authentication of documents, the Act provides: 48. Proof of contents of documents (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question, (b) tendering a document that: (i) is or purports to be a copy of the document in question, and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents, (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)---tendering a document that is or purports to be a transcript of the words, (d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it---tendering a document that was or purports to have been produced by use of the device, (e) tendering a document that: (i) forms part of the records of or kept by a business (whether or not the business is still in existence), and (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary, (f) if the document in question is a public document---tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed: (i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory, or (ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or (iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament. (2) Subsection (1) applies to a document in question whether the document in question is available to the party or not. (3) If the party adduces evidence of the contents of a document under subsection (1) (a), the evidence may only be used: (a) in respect of the party's case against the other party who made the admission concerned, or (b) in respect of the other party's case against the party who adduced the evidence in that way. (4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: (a) tendering a document that is a copy of, or an extract from or summary of, the document in question, or (b) adducing from a witness evidence of the contents of the document in question.

146. Evidence produced by processes, machines and other devices (1) This section applies to a document or thing: (a) that is produced wholly or partly by a device or process, and (b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome. (2) If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome. Note. Example: It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.

147. Documents produced by processes, machines and other devices in the course of business (1) This section applies to a document: (a) that is produced wholly or partly by a device or process, and (b) that is tendered by a party who asserts that, in producing the document, the device or process has produced a particular outcome. (2) If: (a) the document is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence), and (b) the device or process is or was at that time used for the purposes of the business, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document on the occasion in question, the device or process produced that outcome. (3) Subsection (2) does not apply to the contents of a document that was produced: (a) for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) in connection with an investigation relating or leading to a criminal proceeding. 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. (2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement. Table Provisions of this Act Subject-Matter Section 48 Proof of contents of documents Sections 63, 64 and 65 Hearsay exceptions for "first-hand" hearsay Section 69 Hearsay exception for business records Section 70 Hearsay exception for tags, labels and other writing Section 71 Hearsay exception for telecommunications The provisions of Part 4.3 Facilitation of proof

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. 16 A provision of the Act containing (in sub-section (3)) phrases similar to those in s147(3) is s69. The provisions of that section are as follows: 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). Notes. 1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of proof, and authentication, of business records. 2 Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records. 17 Counsel for the defendant referred to s59 of the Act as providing an alternative approach to the documents in question. It is in the following terms: 59. The hearsay rule---exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

18 In relation to admissibility generally, the Act provides: 56. Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. 19 Part 3.11 of the Act conveys discretion to exclude and/or limit the use to be made of evidence in proceedings. That section is in the following terms: 135. General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 136. General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing.

137. Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 20 Additionally, the Act provides for inferences to be drawn in relation to evidence: 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 Evidence 21 Mr Richard Eric O'Neill was called to give evidence by the prosecutor in relation to the tender of exhibits L, M and P. In addition to his oral evidence on the voir dire, the prosecutor also relied upon evidence of the witness contained within exhibits J and K. The witness also testified that, except for the 12 Mile Creek Safe-T-Cam site, which was not operational at the time of the accident, the contents of exhibit N, displaying the location of 21 other Safe-T-Cam sites throughout New South Wales, were correct.

22 The witness described the operation of the Safe-T-Cam system extensively, both in oral evidence and in writing in exhibits J and K. The written summary 'Operation of Safe-T-Cam' in exhibit K provided a useful starting point. Safe-T-Cam ('the system') is an automated traffic monitoring system which has been installed by the Authority on main traffic routes in NSW. The Authority uses the system to monitor the movement of heavy vehicles travelling in excess of signposted speed limits and without required rest breaks.

The system automatically identifies vehicles with a gross vehicle mass in excess of 4.5 tonnes. Using digital camera technology, the system records the details of each heavy vehicle movement through each site including the registration, time, date, direction of travel and a digital image of each heavy vehicle (similar to a photograph). Once a heavy vehicle has passed a Safe-T-Cam site, the system automatically calculates the time that the vehicle took to travel between any two Safe-T-Cam sites …Due to the location of the sites, it would be very time consuming for any vehicle travelling interstate to avoid two or more Safe-T-Cam sites …The Safe-T-Cam is usually mounted 7m above the centre of the road on a gantry or bridge and the distance along the road covered by the camera view is approximately 30m from its mount.

23 In exhibit J and his oral testimony, the witness gave evidence that after an image was taken it was stored locally at the Safe-T-Cam site for twenty-four hours. When the computer created a new record, it was then compared with prior records. If the computer detected a potential infringement of the road user laws in its comparison of the time taken for the most recent movement, as against a set of predetermined values ('allowable times'), a report of the 'incident' was created for an operator to manually check. This would involve an RTA employee manually checking the digital images of the vehicle against the automatically created records. If the operator confirmed a breach of the allowable times, follow-up action was taken, such as issuing an infringement notice or a notice to show cause, and the images would be stored centrally for future reference. Where no 'incident' or alleged infringement occurred, the digital images were deleted after twenty-four hours. The time and location records against which the images were compared, together constituting the 'Sightings Report' of which exhibit L was an example, were held centrally for twelve months, after which time they were purged from the database. Having not been deleted off the system, exhibit L contained all of the entries for the twelve months prior to the accident. Exhibit M referred to an incident, and as such, details of follow-up action, the alleged infringement and the images correlating to it, which had been stored. The image and records or captions to it in exhibit P had also been stored on the day of the accident.

24 The witness gave evidence that he was a qualified motor mechanic, that he had been employed by the Roads and Traffic Authority of New South Wales for seven years and had held the position of Safe-T-Cam Co-ordinator for one year. He described his duties as involving the carrying out of surveys across the State to determine travel times and from them determining, along with his Manager, allowable travel times for heavy vehicles between any two Safe-T-Cam sites. He said he also assisted the Manager of Safe-T-Cam in the day-to-day running of operations and that this was how he had come to provide information to the Inspector. His Manager had delegated the task of responding to the request for information to him. By reference to another of his duties, he gave oral evidence that for any "breachable (sic) areas of non-compliance, with excessive speed or travel time alleged offences [he had to] go through those to make sure they [were] okay".

25 In the course of giving oral evidence explaining the manual checking process the witness said:

When images are taken of a vehicle that could have been for an alleged error of non-compliance that is stored into an area called matching database. Members of Safe-T-Cam have specific user names and passwords; each day we go into that area, once we have achieved successful log on we then start manually matching the images that show up on the screen to make sure the images there are correct and then confirm that an incident has taken place.

26 Under cross-examination as to the nature of his position and his technical expertise, however, the witness agreed with the defendant's proposition that he did not possess "expertise in the information and technology side of the RTA's operations". It was put to him, and he replied:

Q: You don't have responsibility for the maintenance of the data banks collected by the RTA in relation to Safe-T-Cam operations, do you? A: To a certain respect, no. 27 He then agreed that he was not "responsible for the maintenance of the data input by the Safe-T-Cam cameras and other mechanisms", or for the maintenance of the hardware or software that supports that system, nor did he profess to having any expertise in those areas.

28 In examination-in-chief the witness gave the following evidence in relation to exhibit L: Q: On 5 September 2002 do you recall being interviewed by an Inspector Templeton of WorkCover Authority? A: That's correct.

Q: I show you this document. (Shown exhibit L). Do you recognise that? A: Yes, I do. It's a Safe-T-Cam sites report.

Q: Were you asked questions about that document by Inspector Templeton and a record of interview with her of 5 September [was taken]? A: Yes, I was.

Q: Did you tell her various things about that document? A: Yes, I did. …

Q: Where does that document come from to your knowledge? A: It comes from one of the many databases that are kept within the RTA that helps us manage the Safe-T-Cam system.

Q: The database is kept where? A: The database to my knowledge is kept at Flemington.

Q: What do you refer to as a database? A: That holds information pertaining to vehicles travelling through the safe-t-cam system.

Q: A database in what, where is it stored? A: In a mainframe computer. 29 However, in response to questions put by Mr Hodgkinson in cross-examination, Mr O'Neill gave the following evidence in relation to exhibit L: Q: You have told us that [it] is a document that you have looked at? A: Yes

Q: Did you look at it for any other purpose prior to the Inspector approaching you? A: No

Q: Had you looked at it for any other purpose prior to the Inspector approaching you? A: No

Q: The purposes for collecting the information, that is travelling times of heavy vehicles between two site points within the safe-t-cam system, is to determine whether there is any infringement by that heavy vehicle, isn't it? A: Yes

Q: By infringement I mean infringement of the road laws? A: Yes

Q: An infringement will be investigated? A: An alleged infringement, yes.

Q: If there is an alleged infringement that arises as a consequence of the operation of the system it will be investigated? A: Yes.

Q: For the purposes of determining whether proceedings ought be brought in relation to that infringement? A: That accident, yes.

Q: You did not generate this report, did you? A: No, I didn't generate it. 30 In relation to exhibit M, Mr O'Neill's testimony was that he had commissioned its production in response to a request either from the Inspector or the lawyers for WorkCover and for the purposes of these proceedings. As to how the document had come to be generated in the first place, the following evidence was adduced in cross-examination: Q: The Safe-T-Cam system does not generate any documentation relevant to an individual heavy vehicle unless there is an alleged infringement by that vehicle? A: That's correct.

Q: The purpose then of generating the documentation is to investigate that infringement? A: That's correct.

Q: When a vehicle goes through a Safe-T-Cam site, an image is collected and stored within the system? A: That's correct.

Q: If the same vehicle goes through another site, another image is taken? A: If there is an area of non-compliance, yes.

Q: Some process is undertaken by the equipment itself to determine whether there has been a non-compliance with road user laws? A: That's correct.

Q: At that stage that's a prima facie consideration? A: Yes 31 No evidence as to the purpose for which exhibit P was (re)produced was led, either by Mr Hodgkinson or Mr Skinner.

32 The written evidence confirmed that the Safe-T-Cam system exists to monitor compliance with national road user laws. Both the written and oral evidence suggested that the witness was aware at the time of providing information to the Inspector that the request formed part of an investigation into an alleged offence and might be used in this Court. 33 While the witness conceded that his position did not involve the maintenance of the Safe-T-Cam databases' hardware or software and that he did not possess any particular expertise in either of those areas, he did give the following evidence going to the accuracy and reliability of the Safe-T-Cam system. In response to a question from the Inspector, in exhibit J the witness said: The accuracy and reliability of the safe-t-cam system is quite good and due to technological enhancements and survey techniques such as more reliable GPS's, the system is getting better. The witness was also asked, and answered: Q21: In what circumstances is no action taken on an incident? A21: Circumstances can arise where no action is taken where the matching process has been in error or there has been technological failure which [is] highly unlikely. 34 In relation to exhibit L, the witness agreed with Mr Hodgkinson's proposition that in the latter third of the report (the period of the deceased's employment) apart from the last entry in that report (to which the image in exhibit P related) none of the entries had been manually checked against correlate images by any RTA employee. He agreed that he could not, therefore, state that any of the other entries were accurate. The defendant's questioning took the following form:

Q: The system requires as an operational part of it, the manual checking, doesn't it? A: Indeed, yes. …

Q: That's because there are ways that firstly the Safe-T-Cam cameras can be avoided? A: Yes, there are ways.

Q: There are also inaccuracies in the information recorded by the system from time to time? A: Yes.

Q: The system doesn't operate on a foolproof basis, does it? A: No.

Q: Without checking the images, you can't be certain that the recording by the system of a particular heavy vehicle going through a particular point is in fact accurate, that's right, isn't it? A: if you put it that way, yes.

Q: In relation to [the final entry in exhibit L] you can say that the entry is accurate because you can see the image which is exhibit P? A: That's correct. Q: But you can't say in [the period] July 1999 through to September 1999, that any of the other entries are accurate? A: That's correct

35 It was also his testimony in relation to exhibit M that the system did not operate on a foolproof basis and that there were, from time to time, inaccuracies recorded by the system necessitating manual checking of relevant images in order to be certain that records kept by the system were correct. Submissions 36 Notwithstanding that it was Mr Hodgkinson who took objection to the evidence being admitted, Mr Skinner first filed preliminary written submissions outlining the prosecutor's contentions as to the question of admissibility before the parties were heard orally. Following the oral submissions of the defendant and the prosecutor, further written submissions were received from both parties. 37 In his written outline of submissions, Mr Skinner foreshadowed his reliance on ss48 and 147(2) of the Act, in order to found the admissibility of exhibit L. He highlighted that, through that exhibit, he was tendering the information from the RTA Computer and providing a reproduction of that record in paper form for the use of the Court. He submitted that the document was a public document and, therefore, that ss170 and 171 of the Act applied. He submitted that Mr O'Neill was a person within s171 of the Act and that through him the contents of exhibits J and K founded the admissibility of exhibit L. Exhibit M was tendered to demonstrate the working of the system. It was submitted that all of the exhibits were relevant, with exhibit L being described as the "centrally relevant" document, the other exhibits (J, K and M) being relevant because they could explain that fundamentally relevant information. Defendant's Initial Submissions 38 Mr Hodgkinson began his oral submissions by outlining his objections as to relevance. He submitted that exhibit J, exhibit M and the majority of exhibit L (the information within it going to dates outside the deceased's period of employment) were not relevant in any circumstances and, further, that exhibits K, N, O and P were not relevant provided that his objection to the remaining portion of exhibit L (inside the employment period) based on 'authenticity' was accepted. That is, the defendant contended that, if the submission succeeded that the contents of exhibit L that were within the employment period and potentially relevant to the proceedings had not been properly authenticated, and were thereby inadmissible, the remaining documents were not relevant. If, however, the entries were admissible, then exhibit J was also relevant (and presumably so were exhibits K and P). However, it was submitted that exhibit M was not relevant on any basis because it was outside the employment period. Exhibit O could only evidence the fact of an email communication which was not at all relevant. He then turned to the defendant's further ground of objection, namely, a failure on the part of the prosecutor to properly authenticate the documents in question. 39 The argument advanced by Mr Hodgkinson was that before questions going to admissibility of evidence were addressed, the prosecutor bore the onus to prove the contents of the documents sought to be adduced and the prosecutor had failed to satisfy this requirement. It was submitted that, whilst s48 of the Act operated as a 'facilitative' provision, it did not, in itself, provide a basis for admissibility. Notwithstanding the facility of s48, the prosecutor must still, it was contended, first prove the contents of the documents and secondly their relevance; referring to the judgment of Bryson J in National Australia Bank v Rusu (1999) 47 NSWLR 309 in support of this contention.

40 As to the prosecutor's reliance on s147 and, in particular, s147(2) of the Act (which creates a presumption in favour of the contents of documents where they are business records), the defendant drew attention to s147(3), which removed this presumption where the document was produced for the purpose of conducting, or in contemplation of, proceedings or was produced in connection with an investigation relating, or leading, to criminal proceedings. It was submitted that the exhibits sought to be adduced by counsel for the prosecutor were in this category. Mr Hodgkinson referred to Mr O'Neill's evidence in cross-examination going to the purpose of production of the documents. He reiterated that exhibits L and M were produced to the Inspector in consequence of her investigation relating to these proceedings.

41 In relation to exhibit M (the Safe-T-Cam incident report with infringement details), the defendant submitted that since it had first been 'produced' in relation to an alleged infringement of road user laws, it came under s147(3) for this reason too. Mr Hodgkinson did not advance a broader argument going to the purpose and function of the Safe-T-Cam system as a whole to suggest all such records were caught by s147(3). 42 Nevertheless, on the basis of the argument that the documents were produced for these proceedings, Mr Hodgkinson insisted that the prosecutor "must go much further" in proving the contents of the documents. He contended that the prosecutor must not only prove that the contents of the documents (exhibits L, M and P) were, in fact, reproductions of the records in the RTA computer, but must also prove the accuracy of the contents themselves. 43 In so far as the prosecutor sought to rely on s170(2), Mr Hodgkinson contended that, apart from exhibit L, the documents were not public documents and that, in any event, the oral evidence of Mr O'Neill should be preferred to the written statement on the basis that s170(2) was clearly a discretionary provision. He submitted: The fact that Mr O'Neill could give evidence and in fact now has given evidence would mean that the Court would not rely upon the written evidence, it would rely upon the oral evidence.

44 The defendant also contended, in relation to s171, that Mr O'Neill was not such a person having "a position of responsibility in relation to making or keeping the document or thing", because Mr O'Neill's evidence was that he did not possess technical expertise on the maintenance of the hardware or software of the system and his responsibilities as Safe-T-Cam Co-ordinator related to a different task, which did not relate to making the document or thing or keeping or maintaining it.

45 Additionally, it was submitted that, although Mr O'Neill had produced exhibit M in response to the Inspector's questions, he had not seen exhibit L prior to it having been shown to him by the Inspector. Because of this, it was contended that, even if Mr O'Neill was a person within the meaning of s171, he was not in a position to verify that the document, exhibit L (which purported to reproduce part of the contents of the RTA database), did, in fact, represent those records. Far from being able to prove the contents of exhibit L, Mr O'Neill could only make assumptions about the contents of the document. Referring to the manner of proof described by Bryson J in National Australia Bank v Rusu at [17], Mr Hodgkinson submitted that Mr O'Neill could not "recognise [the exhibit] as one of the records of the business" because he had never seen it before. In that case, Bryson J stated: Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the common law and under statutes for public registers and for many kind of documents when certified in various ways: and see the method of proof provided in some cases by s170 and s171 of the Evidence Act 1995. At the simplest, the authenticity of a document maybe proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business' records, or can recognise it as one of the records of the business.

46 The defendant submitted that Mr O'Neill could not recognise the document, exhibit L, because he had not seen it before it was given to him by the Inspector. Even if exhibit L was in a format recognisable to him, and he was able to verify particular records within it through comparison with other documents (exhibits M and P providing images to cross-check particular entries within exhibit L), the ability to 'recognise' described by Bryson J was to be construed literally and since this was not possible, the document had not been properly authenticated and was, therefore, not admissible.

47 The defendant's secondary position was that, putting the prosecutor's contentions at their highest, there were only three entries in exhibit L that could be verified and, hence, could be authenticated (in both having been shown to be the contents of the database and being based on the fact of a digital image). It was put that, in relation to these, relevance must be considered and discretion should be exercised against the admission of the documents.

48 It was also emphasised that Mr O'Neill did not know when exhibit L had been produced so could not know what the workings of the system were at that time, and, therefore, could not credit the accuracy of the system at that time. This submission rested on the earlier identified proposition that the prosecution must go further in authenticating documents than demonstrating that the hard-copy documents truly represented the primary electronic version, it must also prove that the contents of the electronic version were correct.

49 As to discretionary considerations under s135, the defendant submitted that the probative value of the evidence was substantially outweighed by the danger of it being unfairly prejudicial or misleading. It was submitted that, since not even the Roads and Traffic Authority considered the records to be satisfactory 'evidence' without manual checking, the documents contained unreliable and potentially misleading information. Given this questionable accuracy, it was submitted the exercise of a discretion was warranted and should be used to exclude the exhibits. Whilst he conceded, apparently having regard to the power of the Court to draw inferences pursuant to s183, that the Court may examine the documents and "say it appears to be something", he submitted that this was an incorrect approach, having regard to National Australia Bank v Rusu and that this would be most unfair to the defendant in this case. He pressed this position in relation to all but the three verifiable entries within exhibit L. In relation to two of those entries regarding movements in April, outside the period of employment of the deceased, he submitted that, as well as not being relevant to the proceedings, the Court should exercise its discretion to exclude them as they had little probative weight and were prejudicial to the defendant. 50 As to exhibit O, Mr Hodgkinson submitted that the document could only be tendered to prove the fact of the email communication and not its contents, bringing it within the confines of an objection on the grounds of relevance.

Initial Submissions of the Prosecutor 51 In his oral submissions, Mr Skinner emphasised that the document tendered by him as exhibit L was not a document to be proven in and of itself but should be treated as a reproduction of the records held in a mainframe computer by the Roads and Traffic Authority. Mr Skinner based the tender of exhibits L, M and P on s48(1)(b)(ii), (d) and (e) of the Act and submitted that s147(3) did not apply to the documents. Whilst it was conceded that "there may be other ways which need to be addressed on as to the computer generating this document for the purposes of the RTA using it in a certain way", it was submitted that the purpose of the 'production' of these paper documents was not relevant since they were more appropriately conceived of "as reproductions". He submitted that, even if regard was had to the purpose of production of the electronic documents, the documents were not produced for the purposes of these proceedings. Nor were the proceedings contemplated at the time of the production of the documents, so that s147(3) does not apply and the presumption in s147(2), in favour of the authenticity of the documents, remained. 52 As an alternative to reliance on the s147(2) presumption in favour of the proof of contents of records kept in the course of business, Mr Skinner submitted that s146 of the Act applied. It was submitted that that provision of the Act created a presumption more widely applicable than that in favour of business records in s147. It was the prosecutor's submission that s146 alleviated the responsibility to further authenticate the documents, since insufficient doubt had been raised as to them by the defendant.

53 Mr Skinner submitted that the prosecutor had gone well beyond its duty to prove the contents of the documents. Even though the presumption in s146 applied, the prosecutor had gone further by demonstrating that the documents also came within s147(2), even if s147(3) applied and further factual evidence was required to prove the contents of the documents; the prosecution had gone further than merely providing that evidence in the form of a written statement under ss170 and 171 of the Act. It was submitted that Mr O'Neill's written evidence (which, the prosecutor contended, affirmed the exhibits and explained the operation of the Safe-T-Cam system) provided an evidentiary basis for finding both that the contents of exhibits L, M and P were reproductions of the computer database's records and were relevant to the proceedings. His oral evidence was not preferable to that evidence but was supportive of, and supplementary to it. The calling of Mr O'Neill as a witness was indicative of the additional steps taken by the prosecution to authenticate the documents. 54 It was submitted, however, that if this argument was not accepted and it was found that the prosecutor had not proven the contents of the documents, an inference of the kind contemplated by s183 of the Act could properly be drawn to found a presumption in favour of the contents of exhibits L, M and P and warrant those documents being admitted into evidence. In response to the defendant's earlier submission that such an inference should not be drawn following NAB v Rusu, it was submitted that the prosecutor's tender of the oral and written evidence of Mr O'Neill was a point of departure distinguishing this case from that of NAB v Rusu. He submitted that Mr O'Neill's written statement was within s170 of the Act in that it was a statement in relation to exhibit L, a public document by a person in a position of responsibility under s171.

55 Mr Skinner submitted that exhibits M and P were relevant in that they demonstrated the working of the system. Exhibit O was admissible in as much as it was a statement adopted by Mr O'Neill. 56 As to the exercise of the Court's discretion under s135, it was submitted that the evidence did have significant probative value. Mr Skinner submitted that whether or not the accuracy of the evidence could be proven, its probative value must ultimately be determined in relation to, and in the context of, other evidence in the case. The evidence ought be admitted in order that it may be tested in this way. He submitted that the evidence was not confusing, misleading or unfairly prejudicial, and therefore, there was no basis for the exercise of such a discretion. Supplementary Submissions 57 In further written submissions, the prosecutor reiterated its earlier position and advanced an argument in support of admissibility by reference to analogous judgments concerning s69 of the Act.

58 It was submitted that, notwithstanding that the references in s69 to 'representations' contrasted with the reference to documents 'produced by a device' and having produced a 'particular outcome' in s147, there was sufficient similarity between sub-sections (3)(a) and (b) of each section to enable judgments under s69 to be relevant to a consideration of s147.

59 In this context the prosecutor referred to the decision of Rolfe J in Sellers Fabrics Pty Ltd & Anor v Hapag-Lloyd AG (Supreme Court of NSW, unreported, Rolfe J, 15 July 1998) and the decision of Santow J in Edmund-Jones Pty Ltd & Ors v Australian Women's Hockey Association Inc [1999] NSWSC 285.

60 In relation to the former judgment, it was contended that in that decision Rolfe J held that an evidentiary onus rested on the defendant, the objecting party, to establish the exclusionary provisions of s69(3), namely "an Australian or overseas proceeding". Mr Skinner also relied on the observations of Rolfe J in relation to a phrase in s69(3)(a), which he noted was in identical terms to s147(3)(a), as follows:

An Australian proceeding is, clearly enough, an Australian legal proceeding, and it seems to me that the only sensible meaning that can be attributed is one to which the owner of the business record is a party. I should note that in the dictionary it may be open to argument that it is any proceeding because, "Australian or overseas proceeding" is defined as meaning, "a proceeding (however described) in an Australian court or a foreign court." However, in my view, that must mean a proceeding to which the party, otherwise entitled to the document, is a party. 61 In relation to the latter judgment, the prosecutor relied on the observations of Santow J, who stated (at [13]):

Retrieval to meet a subpoena with no change save from electronic to printed form could not cause s69 (3) to apply.

62 Based on these authorities, the following submissions were then made:

1. Each entry within exhibit L was produced automatically by a machine. At the time that exhibit L was produced there were no Australian or overseas proceedings on foot or in contemplation, nor was any investigation relating to criminal proceedings being undertaken. 2) The RTA is not a party to these proceedings.

63 It was submitted that, notwithstanding the substantial similarities between ss69 and 147 warranting the aforementioned comparison, they operated differently. The prosecutor contended that their consequences varied. Where s69(3) applied, the exception to the hearsay rule in s69(2) was removed and the evidence must be excluded under that rule. It was submitted that s147 did not operate that way. Even though similarities warranted the drawing of an analogy between s147(3) and s69(3) and this would tend to negate the defendant's submissions, even if s147(3) applied, negating a s147(2) presumption in favour of the contents of the documents, there was still ample evidence to demonstrate that the "computer devices and processes of the RTA Safe-T-Cam system produced the outcome asserted … by the prosecution".

64 Further written submissions were also received on behalf of the defendant who, like the prosecutor, continued to rely on previous submissions but made submissions in relation to exhibit L.

65 Counsel for the defendant submitted that the prosecution had not established the accuracy of either the paper or the electronic form of the document, exhibit L. This proposition had two bases. Firstly, it was contended in relation to Mr O'Neill's evidence regarding exhibit L, that he did not produce the document, he did not say that it was an extract from any particular record, he could not say who generated the information in the document or when such a process was undertaken. Secondly, the defendant submitted that the RTA did not consider records of the kind contained within exhibit L to be 'evidence'. Referring to National Australia Bank v Rusu (at [33]) counsel submitted that the evidence of Mr O'Neill was sufficient to raise doubt about the s147(2) presumption. The passage cited was as follows:

[I]f 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…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.

66 As to s147, the defendant submitted in relation to sub-section (2) that the evidence was that the (hard-copy) document was produced for the purpose of these proceedings and this indicated that the document was not a "direct record of the recordings forming part or kept for the purposes of a business", because "a document which extrapolates or summarises information for the purposes of a criminal investigation cannot be said to be a document that … formed part of or was kept for the purposes of a business". As such, the presumption in sub-section (2) could not arise. Counsel held to the position that, in any event, (that is, even if the presumption did arise), the exception in sub-section (3) applied.

67 It was also submitted that the authorities in relation to s69 cited by the prosecutor should not be relied upon because the analogy was incorrectly drawn between the provisions. R v Dudko [2002] NSWCCA 336 per Spigelman CJ at [53] was cited as authority for the proposition that s147 was directed towards the production of the document itself, not the representation contained within it. He submitted that the time of the production of the document was a central issue in relation to s147 (which is made clear by the terms of s147(2)). That element is not found in the corresponding provision in s69. It was submitted by the defendant that:

S147(2) refers to the "document" being part of the records of or kept for the purposes of the business. That is not the case in s69(3) which is directed to the time that the representation was obtained. A document in the form of [exhibit L] directly raises the issue of the time and the purpose for which it was produced.

68 It was contended that the document in question was not merely 'retrieved with no change' as discussed in Edmund Jones & Ors v Australian Women's Hockey Association Inc. Rather, it was produced for the purposes of these proceedings. If that was not the case, it was submitted that it was produced in connection with an investigation relating or leading to other criminal proceedings. On this analysis, resting on the foregoing submissions in relation to Mr O'Neill's evidence, once it was established that s147 (2) did not arise, the tender must be rejected.

69 In the alternative, it was submitted that, whilst s48 "is not an enactment to the effect the documents are to be received in evidence on the basis of what appears on their face" (following NAB v Rusu (at [26]), the type of contents of the documents should be examined in order to identify appropriate provisions for determining their admissibility. R v Dudko (at [50] - [51]) was cited as authority for the latter proposition. Given the Dictionary to the Act includes written representations, counsel submitted that this approach would indicate that "the evidence sought to be admitted must be examined as being representations". Under this approach, counsel submitted that the documents would be precluded as hearsay under s59 unless the s69(2) business records exception arose and that this exception could not operate in relation to the contents of the document, or if it did, it was nullified by the provisions of s69(3). 70 Finally, a case in favour of the exercise of discretion was reiterated. It was submitted under s135 of the Act that given "no steps have been taken to establish the accuracy" of the information, that the probative value of exhibit L was substantially outweighed by the danger of it being unfairly prejudicial to the accused. Consideration

71 The documents which form the substance of the issues on the voir dire are exhibits L, M and P. Each of these documents are tendered in the trial . As identified from the outline of the proceedings to date, this judgment will not conclude the substantial evidentiary contest that has arisen regarding these documents. This decision will, of course, have to be read in that context and with the recognition that I have avoided traversing any of the matters which the parties have yet to fully address.

72 The evidence on the voir dire consists of exhibits marked J, K, L, M, N, O and P respectively, as described at the outset of this judgment. As can be gleaned from the recitation of submissions, the document of central significance to the resolution of the voir dire is that marked exhibit L. Thus far, the parties have fully contested the admissibility of only part of that document. I have heard full argument regarding the entries within exhibit L that relate to the period prior to the commencement of Darri Haynes employment with the defendant on 8 July 1999. Leaving aside for one moment what was described as a "threshold" argument in relation to the admissibility of documents L, M and P, the defendant contends that certain parts of exhibit L should be excluded as irrelevant or, failing that, because that evidence would impose greater prejudice than is justified having regard to its limited probative value. On the defendant's submission, given that exhibit M was a record of an incident which occurred prior to the relevant employment period, it should similarly be excluded.

73 I am yet to hear full argument on the admissibility of those entries within exhibit L which fall within the employment period. This judgment does not, therefore, fully resolve that issue. Further, whilst issues have been canvassed as to the admissibility of exhibit P, having regard to the conclusion which I reach on the defendant's "threshold argument", a matter which I will turn to in one moment, I consider that this is more properly dealt with in any decision that relates to matters within the employment period (although there would not appear to be any objection to this document on the grounds of relevance). However, before issues specifically dealing with each of the documents can be addressed, I first must address the "threshold" objection taken by the defendant.

74 The defendant, relying upon the decision of Bryson J in National Australia Bank Ltd v Rusu, contended that the prosecutor must firstly "authenticate" the documents which it seeks to tender in these proceedings. On the defendant's submission, this issue arises before questions of relevance and as a separate and distinct basis for refusing to admit evidence which operates entirely aside from the remaining provisions of the Evidence Act.

75 In addition, the defendant relied on NAB v Rusu for two further propositions. First, the authentication of a document cannot be established solely by reasonable inferences drawn from material disclosed on the face of the document. It was submitted the "facilitative" provisions of s48 do not in themselves provide a basis for admissibility. Secondly, the authentication of a document required not only that the document be properly identified (that is, that the document is what it purports to be), but that it also be shown to be verifiably accurate. I should note at the outset, however, that I do not consider the judgment in NAB v Rusu sustains the entirety of these propositions. In any event, the judgment in NAB v Rusu has limited application in the present matter, having regard to the substantially different circumstances under which the documents in issue are sought to be adduced in these proceedings. In these circumstances, it will be necessary then to discuss the judgment in NAB v Rusu in some detail. 76 In NAB v Rusu, Bryson J heard proceedings commenced by the plaintiff bank, in which the bank sought to trace the proceeds of an alleged theft by the defendants (including a former employee), so as to establish charges over the defendants' property. Some of the defendants were not present before his Honour (having been incarcerated) and those present were unrepresented in the proceedings. Further, those defendants that were present before his Honour had little comprehension of the English language. His Honour, having referred to the Court of Appeal decision in Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) and numerous other authorities dealing with the appropriate level of assistance a Court should afford an unrepresented litigant, observed that the tender of the relevant documents in the proceedings before him was "an occasion where I should intervene and attribute an objection to the defendant" (at [6]).

77 The issues ventilated in that judgment, surrounded the tender of certain documents by the Bank, namely pages "25 and 26 of exhibit SEG3 … [which] appear on their face to be pages 1 and 2 of a transaction history inquiry relating to an account no. 146459720". His Honour observed that "internal material in those pages is obviously appropriate for them to be Bank statements", before continuing to observe that "the pages do not identify the Bank or the customer", and that other documents which were sought to be tendered were said to demonstrate what the relevant pages contained and otherwise support admissibility. His Honour continued (at [11] - [12]): 11 Ms Simone Emma Gilbert is a solicitor in the office of the solicitors who represent the Bank. Annexure A to the Affidavit of Ms Gilbert sworn 23 April 1999 is a Schedule of payments which, according to Ms Gilbert's analysis of documents produced on subpoena by various persons and companies, were made by the first and second defendants after 17 June 1996. 12 Item 1 in the Schedule contains statements to the effect that on 18 June 1996 the second defendant paid Advance Bank $2,850 cash, and bases this on documents produced under subpoena by Advance Bank Australia Limited.

78 It was the second defendant to which these materials were most relevant, and as he was not present, his Honour emphasised that "procedural law [was to be] applied strictly" (at [13]). The judgment continued: 14 A difficulty for the tender of pages 25 and 26 to prove the facts in Item 1 is that in the analysis Item 1 states that it was the second defendant who paid $2,850 in cash into his own bank account on the day after the theft from the bank; whereas nothing on pages 25 or 26 or in the associated documents identifies the second defendant himself as the person who made the cash deposit. Evidence elsewhere suggests that he conducted a concrete haulage business; he may well have had $2,850 in cash available to pay into his bank account from the business or from some other source, or it may well have been someone else who paid it in. The plaintiff's counsel told me that he expected that when evidence about Item 1 is taken with other transactions it will form part of a pattern which will support his case. If admitted the evidence about the deposit of $2,850 will need to be supplemented in some such way or by other material if it is ever to have any real significance. On its own it will not support the analysis in Item 1. 15 Tender of pages 25 and 26 appears to me to raise a question of their authentication; that is whether there is evidence that they truly are what counsel alleges they are; that is copies of bank statements which record dealings between the second defendant and the Advance Bank. No witness from the Advance Bank and no other witness has said in oral evidence or on affidavit that that is what they are. (Emphasis added)

79 Having noted that counsel for the bank had urged a finding that "the documents tendered are bank statements of the Advance Bank relating to an account conducted by the second defendant, on the basis of the contents of those documents and on some other documents which show the manner in which pages 25 and 26 come to be available" (at [16]), his Honour made observations which the defendants in the instant proceedings rely upon (at [17]): 17 Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the Common Law and under statutes for public registers and for many kinds of documents when certified in various ways: and see the method of proof provided in some cases by ss 170 and 171 of the Evidence Act 1995. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business's records, or can recognise it as one of the records of the business (Emphasis added).

80 His Honour referred to various methods by which documents are usually "authenticated" through the regular application of the rules, noting "these practices have not been followed here as the Advance Bank has not been involved in Discovery, the defendants are unrepresented and there has been no Notice to Admit Facts and Authenticity of Documents". However, his Honour observed that "there has in reality been no opportunity for the defendants to consider what course they should take". The judgment continues: 19 It is necessary to establish by evidence other than by pages 25 and 26 the facts that pages 25 and 26 are a bank statement, they are a statement of the Advance Bank and that the account to which they refer is an account of the second defendant . In effect counsel asked me to assume that pages 25 and 26 are relevant and assured me that he would make them relevant. I accept this assurance and my concerns about admissibility of pages 25 and 26 do not relate to their relevance; they would be relevant if they are authentic. If counsel's assurance had already been made good it would be possible, at discretion, to admit the documents provisionally under subs. 57(1)(b). However that stage has not been reached. In the language used in subs. 57(1), a finding that the evidence is what the party claims it to be is distinguished from the question whether the evidence is relevant; authenticity is something on which relevance depends. (Justice Smith saw authenticity as an aspect of relevance in his Honour's Article "The More Things Change the More They Stay The Same? The Evidence Act 1995 - An Overview " 1995 UNSW Law Journals at 13: I see them as distinguished to some degree for this purpose.) As counsel's assurance has not been made good, I have not reached the point where the documents could be provisionally admitted. In my opinion, a question of authenticity is not a question as to the relevance of documents within subs. 58(1), which treats authenticity as part of the material on which relevance may be determined. (my emphasis)

81 I interpose at this point to emphasise that the issue of "authenticity" concerned the question as to whether the document in issue, pages 25 and 26 of exhibit SEG3, were in fact "a statement of the Advance Bank and that the account to which they refer is an account of the second defendant". The documents sought to be tendered were merely two pages identifying certain matters on their face, which had come forward in answer to a subpoena calling for certain documents. No officer from or other person connected to the bank had identified the document as being one from the Advance Bank. Whilst the material within the documents was consistent with them being a bank statement, the documents themselves did not identify the bank or the customer. There was merely the evidence of the solicitor for the plaintiff that it had been produced under subpoena.

82 Returning then to the judgment of Bryson J, his Honour identified the significance of the document to the proceedings and why it was that the issue of the document's authenticity was so important. His Honour identified "the record at page 25 "180696...cash deposit $2,850 ... [a]s a previous representation as defined in the dictionary to the Evidence Act 1995" and observed that s59(1) would prohibit its admission.

83 It should be noted at this juncture, and as has been emphasised in Smith v The Queen (2001) 206 CLR 650 and Papakosmas v The Queen (1999) 196 CLR 297, before one comes to consider the issue of hearsay, the evidence must be otherwise admissible under ss55 and 56 of the Act. If the evidence is not relevant, it is not admissible and the issue of hearsay does not arise. It is s56 that provides the touchstone of admissibility or otherwise, subject to any exclusionary provision of the statute.

84 Returning once again to the judgment of Bryson J, his Honour notes the exception to the hearsay rule for business records as provided in s 69 of the Evidence Act, concluding at [21] as follows: If pages 25 and 26 are to be admitted the plaintiff must show (and I abbreviate s 69): (i) they are part of the records belonging to or kept by the Advance Bank in the course of its business;

(ii) they contain a previous representation made in the course of the business;

(iii) the previous representation was made by a person who had personal knowledge or on the basis of information supplied by a person who had personal knowledge.

85 Bryson J then sets out relevant portions of s48 of the Evidence Act, emphasising that the "documents in question" were documents "the contents of which it is sought to adduce evidence" and stated: 24 Pages 25 and 26 are xerox copies of documents produced by the Advance Bank to the Court in answer to a subpoena; the affidavit of Ms Gilbert shows this. Their admissibility is in the same situation as the document which the Advance Bank produced. Section 51 in Part 2.2 provides: "The principles and rules of the Common Law that relate to the means of proving the contents of a document are abolished." This abolishes the previous law relating to secondary evidence and proof of copies to show the contents of documents. Part 2.2 Documents, including s.48, puts a different scheme in its place. 25 The fact that a copy is tendered has no significance for admissibility, and the admissibility of the documents is in the same position as if the plaintiff proceeded under the opening words of sub-section 48(1) - "A party may adduce evidence of the contents of a document in question by tendering the document in question..." 26 Section 51 does not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be, and subs 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is. Sub-section 48(1) is not an enactment to the effect that documents are to be received in evidence on the basis of what appears on their own face. Sub-section 48(1) prescribes the means of adducing evidence of the contents of documents, and leaves untouched the need to establish that a document is what it purports to be; it does not mean that documents prove themselves, as if judicial notice must be taken of them. 27 If sub-section 48(1) meant that all that had to be done to establish the authenticity of a document was to tender it, it would dispense with the need to prove the authenticity of a document and put the Court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect. I would regard an enactment to that effect as absurd, and I would look for other constructions; however I do not think that sub-section 48(1) has that effect.

86 His Honour then considered various well known and authoritative texts which discuss the Evidence Act and the relevant Law Reform Commission reports which eventually gave rise to that Act, emphasising that in none of those texts was the issue of authentication discussed, and concluding that there was a continuing need for documents to be authenticated. His Honour stated (at [34]): 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.

87 It is then noted in the judgment that the only evidence as to how the documents came forward was to be found in the affidavit of the plaintiff's solicitor. That was, essentially, that the Advance bank had been served with a summons requiring certain documents be produced and the Advance bank had produced a series of documents of which pages 25 and 26 formed a part. As his Honour emphasised (at [37]), by reference to a submission by counsel for the plaintiff to the effect that the authenticity of pages 25 and 26 could be gleaned from other documents produced by that same process, namely "the subpoena, a copy of the affidavit of service of subpoena and the other documents which the bank produced", his Honour had "nothing before [him] but their face value" and that "all of them [we]re subject to at least the same difficulties for their admissibility".

88 Turning then to the defendant's submissions, it is clear that the decision of Bryson J clearly stands as authority for two of the propositions urged by the defendant. Those are, firstly, that a document cannot authenticate itself (and to that extent, the inferences that may be drawn from the material on the face of a document are not sufficient to "authenticate" the document), and secondly, that the concept of authentication arises prior to, and at a conceptually different level to, the issue of relevance. In so far as the defendant relied upon the judgment as authority for the proposition that the process of "authentication" requires the prosecutor to verify the accuracy of the records within a document, I can find nothing in the judgment of Bryson J that would support such a contention. Moreover, I consider that for such an issue to be determined aside from the issue of relevance would be in error.

89 To the extent that Bryson, J concluded at paragraph [19] of his reasoning that the authenticity of a document is an issue that arises wholly and conceptually apart from and prior to the issue of relevance, I would with respect, disagree. In my view, the touchstone of admissibility under the Evidence Act is found in ss55 and 56. It is instructive to recall that this was equally the position at common law: see Smith v The Queen (2001) 206 CLR 650. Whilst I consider it entirely unexceptional to have regard to the authenticity of a document in determining admissibility, in my view, this issue arises as merely one aspect of the considerations going to relevance (in determining admissibility) rather than a consideration which arises at some earlier conceptional point. In any event, I do not consider that the issue of 'accuracy' raised by the defendant is appropriate to be determined in the consideration of 'authenticity', independent of the examination of relevance and discretionary matters going to admissibility.

90 The submissions of the defendant in these proceedings confuse, in my view, issues surrounding the form in which a party may adduce evidence and the ultimate admission of the evidence in the proceedings. That is, on the defendant's submission, the contents of a document cannot be adduced by merely tendering the document itself. On senior counsel's submission, before you can adduce the contents of a document there must be other evidence from which it can be determined exactly what the document is and that the contents of the document are accurate - if both these matters are established then, on the defendant's submission, the document is "authentic", the contents of the document can be adduced and its relevance to the proceedings can be determined.

91 In my view, to see the "authenticity" of a document in that way is tantamount to putting a gloss on the statutory language of s48(1). It would amount to reading the phrase "a party may adduce evidence of the contents of a document in question by tendering the document in question" so as be conditioned by the 'accuracy' of the document. If the defendant's contentions were correct, it would render entirely nugatory many of the beneficial provisions in Part 4 of the Evidence Act relating to the facilitation of proof. There is, in my view, no warrant for such a conclusion and it is more appropriate to deal with the issue as a consideration of relevance.

92 The technical arguments articulated with a view to excluding the material in this case have a tendency to undermine the evident purposes of the relevant provisions of the Evidence Act in assisting the production of computer produced evidence before the Court and allowing the Court to take a contemporary view of material which has been produced by modern technology.

93 I would agree with the defendant insofar as it contends that the provisions of Part 2.2 of the Evidence Act are merely facilitative provisions dealing with the form in which evidence may be adduced; however, the issue of admissibility, which I consider to be a conceptually different issue, is dealt with exclusively in Part 3 of that Act.

94 Moreover, I cannot agree with the defendant's submission, again premised on the judgment of Bryson J in NAB v Rusu, to the effect that the Court cannot draw reasonable inferences as to the authenticity of a document when determining whether the document is authentic. Whilst the contents of a document may not, in many circumstances, be sufficient of themselves to demonstrate that it is authentic, it does not follow, as a rule, that reasonable inferences cannot be drawn from a document.

95 The conclusion reached as to the aforementioned issues is reinforced by the provisions of s 57 and 58 of the Act which provide: 57. Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding, or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. 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.

96 Further, so far as inferences as to authenticity may be drawn from the contents of a document, I would agree with the observations of the learned author Stephen Odgers, "Uniform Evidence Law," 5th Ed, where having set out s58 of the Act and paragraph [19] of the judgment in NAB v Rusu, he states (at 140): Bryson J considered that authenticity should be distinguished from relevance. On this approach, apparently, a court may not draw reasonable inferences from a document as to is authenticity. It is suggested that such a view is inconsistent with the intention behind this provision and its legislative history. It was plainly intended that, for the purposes of determining the admissibility (s 56) of a document, a question of prima facie authenticity (on which relevance will depend) may be decided with the assistance of reasonable inferences from the document itself. After all, the ultimate question of authenticity is for the tribunal of fact, not the court determining the question of admissibility.

97 It is also instructive to have regard to judgments that have considered that of Bryson J in NAB v Rusu. The most significant for present purposes is that of Heydon JA, (with whom Priestly JA and Sheller JA agreed) in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25.

98 That judgment dealt with an appeal from a decision of a District Court judge in a personal injury matter. During the course of the trial in the District Court, a report of a Dr Thurai had indirectly come to the judge's attention. Dr Thurai had not otherwise given evidence in the proceedings and had not been the subject of cross-examination. The report was the subject of various discussions between the Bench and the bar, and was ultimately the subject of an agreed course of action. The document was admitted into evidence, despite the fact that there was no basis upon which it could be authenticated as the report of a Dr Thurai, nor could it be demonstrated that the patient referred to in the report was the plaintiff in that case. The plaintiff appealed the decision. On appeal, it was alleged the trial judge had formed an adverse view of the plaintiff's credit relying, in part, on the report of Dr Thurai.

99 The Court of Appeal rejected the submission that the report had been relied on by the trial judge at all and so the authenticity of the report did not strictly arise. However, for present purposes, the discussion of ground 1 of the appeal in the judgment of Heydon JA is significant, as it is in the passages discussing that ground of appeal that reference is made to Bryson J's judgment in NAB v Rusu. The entirety of the reference appears in the judgment of Heydon JA at [44] - [47] as follows: 44 Ground 1 states: "The Trial Judge erred in placing any reliance at all on a set of clinical notes of unknown origin." 45 This submission has two flaws. 46 First, if the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant. The Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances: National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309. The plaintiff's complaint is that there was no evidentiary basis for the trial judge's finding that it was, when read with Exhibit 4C, what it purported to be, namely a page of Dr Thurai's patient history of the plaintiff. If so, the document could have been rejected on objection. And if the complaint is that there was no evidence that there was a Dr Thurai or that there was no evidence that he had treated the plaintiff, or that "Terence Daw" was not the plaintiff, the document was not capable of rationally affecting the assessment of the probability of a fact in issue, and hence was irrelevant ( Evidence Act s 55(1)) and inadmissible (s 56(2)). But since the document was not objected to by the plaintiff at the trial, it is not now open to the plaintiff to raise complaints about the defendant's failure to prove its origin by explicit means. 47 Secondly, Ground 1 assumes that the trial judge did place reliance on Exhibit 13. As was indicated above, the plaintiff did not demonstrate that he did.

100 Whilst Heydon JA clearly accepted NAB v Rusu as authority for the proposition that "the Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances", the remainder of his Honour's reasoning in paragraph [46] appears to be inconsistent with acceptance of the proposition that the issue of authenticity arises separately and prior to the discussion of relevance. Indeed, his Honour's reasoning appears to embrace the view that, if the document were not properly authenticated, it "was not capable of rationally affecting the assessment of the probability of a fact in issue, and hence was irrelevant (Evidence Act s 55(1)) and inadmissible (s 56(2))". Moreover, his Honour expressly recognised that the contents of a document may "in limited circumstances", "permit documents to authenticate themselves".

101 I would note for completeness that NAB v Rusu was relied upon by Goldberg J in Kingham v Sutton (No.3) [2001] FCA 1117.

102 It is appropriate to refer at some length to the judgment of the Full Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305.

103 The Full Court in that case was dealing with an appeal from a decision of a single judge, concerning an application for review of a decision of a Deputy Registrar of the Migration Review Tribunal, refusing the appellant a temporary student visa. The substantive issue before the trial judge and on appeal was whether the department had "notified" the appellant of its determination, so as to activate a time limitation in which the appellant could have sought a review of the tribunal's decision. A relevant provision of the Migration Act provided that notification was deemed to have taken place seven days after a letter containing the notification was sent, regardless of whether the letter was actually received.

104 The Department had sent a written determination dated 19 March 2001, refusing the appellant a student visa, by way of registered post. A copy of a barcode sticker from the registered post envelope was attached to a copy of the determination maintained on file at the Department's offices. The Department maintained a computer database of all relevant applicants. The relevant computer record for the appellant indicated that the determination had been sent on the day it was written, 19 March 2001, and contained a notation of the barcode number of the registered post envelope. In the Department's file there was a second copy of the determination. It had a handwritten notation on it, indicating that someone from Australia Post had contacted the Department on 20 March 2001 indicating that the registered post envelope had been received at an Australia Post transfer station. There was no mark identifying who had made the note, who it was from Australia Post that had called, or any other identifying feature. On 26 April 2001, the Department received the determination, marked "return to sender". The issue was whether the letter had ever been sent and if so when.

105 The trial judge had relied on an affidavit of a responsible officer of the Department, annexing a copy of the determination with the handwritten notation, as evidence that Australia Post had received the copy of the determination sent by way of registered post and that it had done so at a time which would have rendered the appellant's application for review out of time. The trial judge had accepted that the relevant notation was a previous representation within s59 of the Evidence Act, but that the document was within the business records exemption in s 69 of that Act. On appeal, it was, inter alia, contended that it was an error for the trial judge to have relied upon the determination containing the handwritten notation, in the absence of evidence as to the origin or some form of authentication of the handwritten notation, relying upon NAB v Rusu.

106 The appeal was ultimately dismissed on other grounds, however, Madgwick J "in deference to the arguments presented to the Court on the appeal" and in light of the fact that "these questions may involve issues of general importance about the meaning and application of the Evidence Act", gave consideration to Justice Bryson's decision. Having referred to and set out the provisions of s 58 of the statute, Madgwick J (with whom Conti J agreed, Merckel J not considering it necessary to address this issue) stated (at [25]): There is controversial NSW authority which supports the appellant: National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 (Bryson J), approved by Heydon JA in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; see also Kingham v Sutton (No 3) [2001] FCA 1117, c.f. Odgers "Uniform Evidence Law" 5th ed. at p140. In Rusu , his Honour may have meant no more than that there may be cases in which, as a matter of fact, no inference as to authenticity of a document may be properly drawn from the document itself. If he meant to say more than that, it is by no means clear to me that the way is open for a court to read some unexpressed limitation into a grant of power to courts: such grants are generally very liberally construed - see PMT Partners (in liq) v Australia National Parks and Wildlife Service (1995) 184 CLR 301 at 303 and 316; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 290; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185, 195 and 202-3. Such an approach may be particularly apt where, as here, the provision aims at putting another nail into the coffin of unmeritorious technicality in litigation and s 135 provides ample safeguards against possible abuse of the section.

107 Having regard to the above discussion, my conclusions, in summary, are:

1. The provisions of s48(1) are facilitative provisions relating to the form with which evidence may be brought - the section itself does not concern admissibility per se; 2. The issue of authentication does not relate to the accuracy of the contents of a document - it merely requires a conclusion that the relevant document is indeed "what it purports to be." In my view, no different conclusion arises from the judgment in NAB v Rusu.

3. I agree with the judgment of Bryson J in NAB v Rusu, in so far as it stands for the proposition that as a general rule a document will not be taken to authenticate itself - see also Daw v Toyworld (NSW) Pty Ltd, and Lee v Minister for Immigration & Multicultural & Indigenous Affairs; 4. However, in forming a view as to the authenticity of a document, and hence the relevance of its contents to the facts in issue in proceedings, the Court is entitled, in my view, and with respect to his Honour, to draw "any reasonable inference from it, including an inference as to its authenticity or identity": s58; 5. Further, the issue of authenticity, in so far as it relates to a document, is a matter which falls to be determined as a matter going to the relevance of the document to the proceedings (see, in particular, ss57 and 58);

108 However, as earlier observed, it is strictly unnecessary to fully examine the application of those conclusions in this matter, as the judgment in NAB v Rusu has limited application in the instant case having regard to the fundamentally different circumstances applying to the tender of the documents in issue in this matter. I note, in this respect, the observation of Bryson, J in NAB v Rusu at [41] to the tender of documents in that matter: as means of proof of the records of the Advance Bank, the circumstances relating to Advance Bank's response to the subpoena appear to me to be vehemently unsatisfactory. 109 The prosecutor has tendered exhibit L, M and P as extracts from an electronic database kept by the RTA as a part of its Safe-T-Cam system. The relevant "document" for the purposes of s48 of the Evidence Act is the computer database held by the RTA. Exhibit L, being the reproduction of a part of that computerised document, is five pages in length, headed "Safe-T-Cam Sightings Report" under an RTA insignia, identifying itself as a "Sighting Report for Plate TWW240". The document's five pages bear typeface data organised into five columns headed "Place", "Date", "Time", "Location" and "Direction". The dates identified in the report extend from "04/09/1998" through to "01/09/1999". Exhibits M and P are both extracts from the computer database, containing digital images that were taken by the automated Safe-T-Cam system.

110 The operation of the Safe-T-Cam system was described extensively in evidence on the voir dire by an employee of the Roads and Traffic Authority of New South Wales, Mr O'Neill. He had been employed with that organisation for seven years and had held the position of "Safe-T-Cam Co-ordinator" for one year. His duties included supervising the day-to-day running of the Safe-T-Cam system. Whilst it was conceded that he was not involved in the technical aspects of the system's operation, including the maintenance of the hardware or software associated with the system, or with the management of the database of records kept by the system, he was, from experience gained through his position, able to identify the document as being one produced by the Safe-T-Cam system. He was able to say that it was generated from "one of the many databases that are kept within the RTA that helps us manage the Safe-T-Cam system" and that the relevant database was kept at Flemington on a mainframe computer. Having regard to what was stated by Bryson J at [17] in NAB v Rusu, there has been authenticating evidence given by "a person who participates in the conduct of the business [who] … can recognise it as one of the records of the business". Similar observations can be made about exhibits M, and P.

111 I am satisfied that Mr O'Neill was "a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing" as defined in s171(1) of the Evidence Act and as such was an appropriate person to give evidence as to the authenticity of the document: s170. (see also the discussion by Shaw J in Godfrey v New South Wales (No 1) [2003] NSW SC 160 as to the circumstances in which non-expert evidence may be admitted).

112 In short, there is no basis on which it could be said that this case is akin to NAB v Rusu where there was no "evidentiary basis for finding that [the document] is what it purports to be". Exhibits L, M and P are being put forward as a copy of a part of a computerised document kept by the New South Wales Roads and Traffic Authority as a part of its Safe-T-Cam system. Whether or not that system is accurate and can establish the propositions for which the prosecutor ultimately relies on it, is of course, a question of relevance or prejudice, and perhaps weight under ss135 - 137, to which I will turn later in this judgment.

113 Whilst the relevance of the documents will be more extensively considered in one moment, it is convenient at this juncture to observe, having regard to the evidence of Mr O'Neill and the inferences that may be drawn from the material contained within the documents themselves, I am satisfied that exhibits L, M and P are authentic copies of a part of the records of the RTA - that is, the computerised database of the RTA. It is, therefore, in a form which is capable of being adduced under s48(1)(b), (d) or (e) - it being unnecessary to distinguish between those provisions for this purpose. Whilst that resolves the defendant's "threshold" objection so far as it relates to the authenticity of documents in question, such a conclusion does not, however, dispose of the defendant's objection insofar as it relates to the potential inaccuracy of those documents. That consideration is applicable to the question of admissibility and, in particular, the issue as to whether the Court should exercise its discretion pursuant to s135 of the Act - that is, to refuse to admit exhibit L as evidence in the trial.

114 The starting point for any consideration of admissibility, as has been recently emphasised in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v The Queen at [6] - [7], is whether the evidence is relevant: As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore (Thayer, "Presumptions and the Law of Evidence", (1889) 3 Harvard Law Review 141 at 144-145; Wigmore, Evidence in Trials at Common Law , (Tillers rev) (1983), vol 1, ss9, 10): "None but facts having rational probative value are admissible", and "All facts having rational probative value are admissible, unless some specific rule forbids." In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding (s 55(1)).

115 As was later emphasised in that judgment at [12], where evidence is irrelevant, "no question of admissibility [has] to be considered". Kirby J made similar observations at [19] where his Honour stated: Both by the common law (Thayer, A Preliminary Treatise on Evidence at the Common Law , (1898) at 265, 530; Wilson v The Queen (1970) 123 CLR 334) and under the Evidence Act 1995 (NSW) (s 55; "the Act"), a demonstration of relevance is the first prerequisite to the admissibility of evidence.

116 His Honour continued to emphasise that a "broad interpretation" of the test of relevance was also "consistent with the purpose of the Act" being to "aid the court process rather than delay it", citing various passages from the earlier decision of the High Court in Papakosmas v The Queen as authority for the proposition that "the effect of s56 is that relevant evidence is admissible unless it is excluded by another provision of the Act". His Honour went on to make some important observations, with which I would, with respect, agree, at [25]: The large number of statutory exceptions also suggests that the scheme of the Act (like the common law before it) envisages that the major battleground of exclusions will lie in applying the various exceptions once evidence is accepted as relevant. 117 Reference should also be made to the judgment of Mason P (with whom Sully J and Levine J agreed) in R v Beattie (2001) 127 A Crim R 250 at [20] where his Honour emphasised: If, and only if, that question [the question of relevance] is answered in the affirmative does one turn to further questions about the application of the opinion rule, the discretion to exclude evidence under s135 of the Evidence Act and the direction to exclude prejudicial evidence under s137 of the Evidence Act. 118 Before embarking upon a discussion of the relevance of the documents, it is important to emphasise again the matters with which I can appropriately deal in this decision.

119 As noted above, at this stage of the proceedings, the prosecutor has tendered exhibits J, K, N and O on the voir dire only, in order to support the admission of exhibits M, P and exhibit L in the substantive proceedings. Similarly, those entries in exhibit L which extend prior to the commencement of Darri Haynes employment on 8 July 1999, with the exception of those matters in exhibit L which correspond to exhibit M, have been tendered on the voir dire only for "completeness". I am yet to hear full argument as to how those aspects of exhibit L which encompass Mr Haynes' period of employment are relevant to the substantive proceedings. It follows then that the question of relevance will be reserved in that respect, together with any application by the defendant urging the Court to exercise its discretion pursuant to s135 of the Act. 120 As to the entries in exhibit L prior to the employment period and exhibit M, the submissions of the defendant resolve, in my view, into an objection as to relevance. Mr Hodgkinson maintains his objection to exhibit M and those aspects of exhibit L that were outside Mr Haynes' period of employment as being entirely irrelevant to the proceedings. The alternative position was that these matters should be excluded by exercise of the discretion under s135. 121 As emphasised in Smith v The Queen, that requires an identification of "the elements of the offence with which the accused stands charged," as the factual issues requiring resolution will be "issues about the facts which constitute those elements". The defendant stands charged with two offences: one under s15 of the Act and one under s16 of the Act.

122 The elements of a charge under s16 of the Act were stated by the Full Bench in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2001) 102 IR 84 at [12] as follows: 12 In Inspector Page v Woolworths Ltd ( unreported, CT93/1044, 9 September 1994 ) , Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s16(1). These we paraphrase as follows: 1. the defendant was an employer; 2. there were persons not employees exposed to risks to their health or safety; 3. the risk arose from the conduct of the defendant's undertaking; and 4. the exposure to risk was at the defendant's place of work.

123 Similar observations on the "elements" of an offence under s 15(1) were recently made by Kavanagh J in WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 35 where her Honour stated (at [272]): 272 Therefore the elements of the charge under s15(1) of the Act which the prosecution must prove beyond reasonable doubt are:

1. the defendant was an employer at the time of the alleged breach; 2. that there was a risk to employees' health or safety; 3. that there was a causal nexus between the defendant's breach and the risk to employees' safety; 4. that the risk was to employees at work.

124 Reference should also be made in this context to the judgment of the Full Bench in Legge v Coffey (No.2) (2001) 110 IR 447 (at [16] - [17]).

125 The charges are set out at the commencement of this judgment, it being sufficient to note that, by way of brief summary, they are particularised so as to allege a failure to ensure "sufficient rest stops whilst they were driving", a failure to provide appropriate rosters so as to avoid "the effect of fatigue and sleep deprivation", a failure to properly record and audit "driving hours … to minimise the risk to employees of the effects of fatigue and sleep deprivation", a failure to warn employees against various hazards and to provide sufficient "information, instruction, training and supervision", together with a separately particularised failure to provide a "safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving".

126 Substantial issues may arise in relation to many of these factual elements. However, for present purposes it would appear the defendant's contentions as to the relevance of the elements of exhibit L falling outside of the relevant employment relationship are premised on a submission that the charges are restricted to failures on a particular day, that is, 1 September 1999, and in relation to a particular employee, Mr Darri Haynes.

127 As a general proposition, the entries in exhibit L, if accepted as evidence of the movements of the truck (registration TWW 240) at various times and locations around the State, may, when taken with other evidence, rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings, namely 'fatigue', 'sleep deprivation' and ultimately, whether any system of work was safe. That is, the entries appearing in exhibit L (to the extent pressed as proof of a system of work) may potentially be relevant to the 'system of work' components of the charge. However, this general observation is subject to the consideration of the defendant's submission that the entries are not relevant because of the way the charge and particulars thereto are drawn. I also note that there does not appear to be any issue raised by the defendant as to exhibit P in this respect.

128 However, the pre-employment entries in exhibit L have not, as I understand it, been tendered to establish a system of work per se or even as circumstantial evidence of such a system. Rather, it has been tendered merely to establish the operation of the Safe-T-Cam system. That the evidence has been for the limited purpose of supporting the admissibility of other evidence does not, however, render that evidence irrelevant: see s55(2)(b). As such, exhibit M and those aspects of exhibit L which predate Mr Haynes' employment with the defendant, have been tendered for a legitimate forensic purpose and are relevant to that extent. I should also reiterate, the entries in exhibit L from 4 September 1998 to 7 July 1999 inclusive (other than the entries for 2 April 1999) are only tendered for 'completeness' and to demonstrate the relevance of the balance of exhibit L. Whilst the probative value of evidence tendered on this limited basis is questionable, I consider that these items are still of provisional relevance and that any balancing of probative value versus prejudice should be dealt with as an exercise of discretion. This consideration will be dealt with later in this judgment.

129 Further, it is inappropriate, in my view, to form a final view as to the defendant's contentions referred to in paragraph [126] at this stage of the proceedings for two reasons. Firstly, the issues raised by the defendant relate at least in part to the defendant's objection to those aspects of exhibit L falling within the employment period about which the question of relevance is reserved, subject to further submissions (at an appropriate later stage of the proceedings).

130 Secondly, to conclude that these exhibits are not relevant for any purpose would require me to accept a premise upon which the defendant puts its submission. That is, it appears to require acceptance of the proposition that as the charges levelled against the defendant have been particularised by reference to a single day and in relation to a particular employee, anything outside of that day (or at least a date very proximate to it) or involving some other employee is entirely irrelevant to the determination of the issues in the proceedings. There is a real difficulty in dealing with such a contention at this stage of the proceedings. It would appear at least some elements of the charges brought against the defendant and the particulars thereto involve what may broadly, as earlier noted, be described as a "system" charge. The court is, however, yet to hear any substantial evidence in relation to the defendant's system of work.

131 In any event, and as a purely preliminary observation (as I am yet to fully hear the defendant and prosecutor on the relevance of entries in exhibit L covering the employment of Mr Haynes), there may be some difficulties with the defendant's submissions in this respect (that is, the submissions arising from the scope of the charge), as entries appearing in exhibit L (to the extent pressed as proof of a system of work) may be relevant to the 'system of work' components of the charge: see WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 (at [91], and in particular point 6 of paragraph [101]). I also note that there does not appear to be any issue raised by the defendant as to exhibit P in this respect.

132 I may also need to hear the defendant and the prosecutor as to the nature of an offence under ss15 and 16 of the Act as discussed in decisions such as that of Wright J, President in Coombs v Patrick Stevedores Holdings Pty Ltd (2001) 103 IR 417 (approved by the Full Court in Patrick Stevedores Holdings Pty Ltd v Coombs (2001) 104 IR 240) and that of Haylen J in Coombs v Patrick Stevedores Holdings Pty Ltd (2002) 118 IR 401. Whether an offence particularised as a "system" charge is properly seen as a "continuous offence," as discussed in those authorities, again is a matter which may bear on this issue and has not as yet been the subject of submission.

133 In the result, I consider that the entries in exhibit L (prior to the employment period) and exhibit M should be treated as provisionally relevant. However, I would emphasise that any final conclusion will have to be made in light of the submissions and evidence in the proceedings. As noted above, exhibit P, whilst of provisional relevance, is more appropriately dealt with conclusively as a part of any consideration of matters within the employment period of Mr Haynes (which are to be considered later in these proceedings).

134 Having concluded that the exhibits L, M and P are of provisional relevance, the issue becomes whether there are matters "as otherwise provided by [the Evidence] Act", which warrant exclusion (see s 56(1)). The first matter which arises for consideration is the defendant's contention that exhibit L (and presumably exhibits M and P) should be excluded as hearsay.

135 The hearsay rule is defined in s59(1) of the Evidence Act: Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

136 A previous representation is defined as "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced".

137 The defendant contends that exhibit L falls within this definition, having regard to the definition of "representation" in the dictionary to the Evidence Act. That definition is in the following terms: "representation" includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.

138 For completeness, I should also note that the word "person" is not defined in the Act. However, s 21(1) of the Interpretation Act 1987 provides that: In any Act or instrument: … "person" includes an individual, a corporation and a body corporate or politic. 139 On the defendant's submission, the document is excluded by s59(1), and does not fall within the business records exception to the hearsay rule as provided in s 69.

140 Exhibits L, M and P contain two types of evidence. Firstly, there is evidence of the contents of the database, noting that these documents are put forward as an extract of that electronic document. Secondly, there is the evidence of the location of the truck (registration TWW 240) at a particular time and place. The defendant's contentions appear to be focussed on the latter and appear to be premised on an assumption that the location of the truck is being put forward as evidence of an out of court representation made about the conduct of a person, (perhaps the deceased, as driver of the vehicle, although I would observe that the defendant did not make entirely clear what representation the document was said to contain). 141 For an item of evidence to be caught by the hearsay rule, there must be a representation as defined. The relevant definition of "representation" is presumably that to be found in paragraph (b) - "a representation to be inferred from conduct". To be hearsay under the Act, that evidence must be a "previous representation" as defined; that is, a representation "made otherwise than in the course of giving evidence in the proceeding". Finally, to be hearsay, a representation "to be inferred from conduct" "made otherwise than in the course of giving evidence in the proceeding", must have been made by "a person". If these matters are satisfied, the previous representation of a person cannot be used to "prove the existence of a fact that the person intended to assert by the representation".

142 There are a number of difficulties with the defendant's submission. Firstly, what is the conduct that is said to provide the inference of a representation? There is no representation of any person to be found in the evidence of the computer database. The database does not purport to record the conversations, location, movements or actions of a person and are not a record created by a person identifying something they have heard or witnessed. The records on the database are the product of an automated computer program which identifies a particular truck by reading its registration plates through the use of digital images and character recognition software.

143 There is no representation to be inferred from the conduct of any person contained in the computer record, as the only "conduct" which is to be found in the computer database is that of the truck. Evidence as to who was driving the truck at any given time must come from elsewhere, either from direct evidence or from inference. This is not a case akin to R v Dudko where the relevant telephone records contained evidence of a representation (by conduct) that an inmate had contacted a certain person on a particular day.

144 In that case, the telephone records were of a telephone account operated exclusively by the inmate Killick. The telephone system in the prison operated by way of an automated dialling system which identified a particular pre-programmed telephone number as relating to a particular person. In selecting that pre-programmed number, Killick was by his conduct, making a representation. That representation was that he was trying to contact a particular person. The telephone records, therefore, contained a previous representation by the conduct of Killick. In leading evidence of the telephone records to prove that Killick was contacting a particular person at a particular time on a particular day, presumably as circumstantial evidence of a conspiracy to break Killick out of prison, the telephone records were being used for a hearsay purpose.

145 That is not this case. The evidence was not lead to demonstrate that the truck in this case was exclusively operated by the deceased. Moreover, there is evidence in exhibit M which directly bears against such a conclusion. It cannot be said on any account, that in leading evidence of the location of the truck, the prosecutor is leading evidence of a previous representation made by a person, such as the driver. The evidence as to who was the driver at any relevant time must come, if at all, from elsewhere. There is simply no representation of a person to be found from the location of the truck as disclosed in the computer database.

146 Secondly, even if the evidence of the Safe-T-Cam computer was somehow found to contain a representation, the question arises as to what was intended to be proved by that representation.

147 As was emphasised by a unanimous decision of the High Court in Lee v R (1998) 195 CLR 594 at [22], when one comes to consider the operation of s59(1), the first question which must be asked is what is it that the relevant previous representation is led to prove?

148 Having regard to the nature of the records in the computerised database and the manner of their creation, the only thing that could possibly be proved by the tender of exhibit L is the location of the truck TWW240 at a given time on a given day. The defendant has "assumed the purpose of the tender is to establish the alleged hours worked by the deceased". However, there is nothing in the database itself that could be used to identify the hours worked by the deceased. The driver of the particular vehicle at any given time must be identified through some other evidence. If it can be shown that on a given day the deceased was the driver of the vehicle then appropriate inferences may be drawn from the location of the truck - but the database records of themselves do not establish that any particular person was driving the truck at any particular time. Presumably, this is one of the reasons behind the Safe-T-Cam system being treated as a beginning rather than an end when investigating an alleged breach of the road laws.

149 Leaving aside conceptual impossibilities associated with a computer "intending" to assert anything (the significance of which was emphasised in R v Lee), the computer could be seen as merely collating information as to the location of a truck it had identified at a given place and time. Put simply, the contents of exhibit L would be direct evidence of what was observed by the "person" and not a previous representation as defined - it would not be caught by the hearsay rule: cf R v Dudko. These are, in my view, typical of the technical issues which the facilitative provisions of the Act, and in this I have regard both to those provisions relating to form (see s48) and those relating to the facilitation of proof (see ss146 and 147), were designed to avoid.

150 These conclusions are supported by the approach adopted at common law in relation to material produced by a scientific instrument, an example of which is to be found in the judgment of Wright J in the Supreme Court of Tasmania in Rook v Maynard (1993) 126 ALR 150. Whilst those proceedings fell to be determined under common law principles, it is instructive to have regard to the manner with which his Honour treated issues of hearsay involving documents produced by the automatic mechanical (or electronic) operations of a computer. The case was a criminal proceeding founded on an allegation that the defendant had illegally accessed certain information contained within the computer system of his employer, the Department of Social Security, under certain provisions of the Crimes Act 1914 (Cth).

151 The relevant information was only accessible by going through a log-in process to get onto the Department's computer network, and that log-in process involved the use of a unique user name and a password that was only known to the defendant. The relevant evidence was produced by a trace program (which had been attached to the defendant's user name and password) so as to create a log of all the files which the defendant had accessed whilst logged into the Department's network. The report generated by the trace program was the only evidence against the defendant.

152 The report produced by the trace program had been objected to on a number of bases, including that the contents of the relevant report were hearsay. Having referred to authorities relating to the admission of evidence produced by scientific instruments (noting, in particular, the reliance upon the decision of Simon P in The Statue of Liberty [1968] 2 All ER 195), his Honour stated (at 157): Mr Porter says, however, that in the present circumstances the computer trace was operating neither as a tool for calculation purposes nor as a simple recording and retrieval system for data not supplied by a human source. He submits that these are the only two categories of computer function which the common law recognises as able to escape the exclusory application of the hearsay rule. In support of this proposition he referred to Professor R A Brown's book, Documentary Evidence in Australia , 1988, pp 315-24. Assuming for the moment that Professor Brown's categories are both accurate and exhaustive, it seems to me that once the trace was applied to the respondent's log-on identification, the process then undertaken by the trace was entirely mechanical in that the peregrinations through the data base by that computer user were automatically traced throughout the system and were recorded and stored ready for retrieval in report form as soon as the trace print-out was called for. Admittedly, this final stage of the process, ie, asking for a print-out of an activity report, called for human intervention but not in any way which would justify the suggestion that the print-out then obtained had a hearsay component. [his Honour discussed the nature of the program and continued] This process, whilst more sophisticated than the process described in the Statue of Liberty case, appears to me to be of the same basic kind. In a sense the trace recording facility for identifying the material accessed by the respondent may be likened to storing a photograph on a spool in a camera from which it may be taken, developed and printed at a later date.

Unlike a print-out of a bank statement which records deposits and withdrawals from a bank account and which, except for the final print-out, relies upon the accuracy of each operator who has caused such transactions to be recorded and which is therefore plainly almost entirely hearsay in content, the process now under discussion is, as I see it, totally devoid of any such human hearsay element.

153 Wright J concluded his reasoning on this aspect of the judgment by quoting a passage from the headnote to R v Wood (1982) 76 Cr App R 23 (CCA) which I consider entirely applicable to the instant proceedings: Where a computer is used as a calculator and its programming and use are both covered by oral evidence, the print-out produced is not hearsay evidence. Computer print-out is not a statement made by a witness but should more properly be treated as a piece of real evidence, the actual proof and relevance of which depends upon the testimony of a witness. 154 The hearsay rule does not apply to the exhibits sought to be tendered in this trial, and as such the exception to the hearsay rule in s69 does not arise.

The Facilitation of Proof 155 Leaving aside for one moment the application of ss135 - 137, the next matter requiring attention is the prosecutor's reliance upon the provisions of Part 4 of the Evidence Act and ss146 and 147 in particular. The issue is whether the prosecution can avail itself of the presumptions which those provisions provide. It should be noted, of course, that the provisions relating to the facilitation of proof are relevant solely to exhibit L, those items in exhibits M and P being visual images which may give rise to the capacity to verify. Whilst I do not consider it appropriate to express concluded views as to the relevance of certain items of evidence in the proceedings at this stage, it is appropriate that I determine the operation of these provisions.

156 The evidentiary situation in relation to the accuracy of the database with which I am faced gives rise to a number of difficulties. Firstly, we have Mr O'Neill, a person involved on a day-to-day basis with the operation of the Safe-T-Cam system, but not in the technical operation of the system. He readily conceded that the system did not operate on a "foolproof basis" and that as a part of the Safe-T-Cam system, the material recorded on the electronic database required manual checking. He conceded that in the absence of manual checking, he could not be certain that the recording system accurately identified a particular heavy vehicle. He was, however, able to confirm the accuracy of the events identified in exhibits M and P as the digital images recorded by the automated aspects of the Safe-T-Cam system had been extracted from the system and were capable of being subject to the manual check described in evidence.

157 Sections 146 and 147 have been set out earlier in this judgment and need not be repeated. From the evidence of Mr O'Neill, I am satisfied that the prosecution cannot avail itself of the presumptions that are afforded by s146 of the Evidence Act. It would not, having regard to Mr O'Neill's evidence, be "reasonably open to find that the device or process is one that is, or is of a kind that, if properly used, ordinarily produces" a particular outcome: see s146(2).

158 Turning then to s147, the defendant contends that s147(3) would make the facilitative provisions of s147(2) inapplicable to these proceedings as a prosecution under the Act is of a criminal nature, and the material in exhibit L was "produced" for the purposes of or in connection with an investigation relating or leading to a criminal proceedings - being either these proceedings or proceedings for the infringement of the road laws. The prosecutor contends that s147(3) does not apply to exhibit L in these proceedings as it "is merely the reproduction in paper form of the primary electronic document, and the primary electronic document does not come within s147(3)". I agree with the submissions of the defendant in this regard.

159 A "criminal proceeding" as referred to in s147(3)(b), is defined in the Dictionary to the Evidence Act in the following terms: "criminal proceeding" means a prosecution for an offence and includes: (a) a proceeding for the committal of a person for trial or sentence for an offence, and (b) a proceeding relating to bail, but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth.

160 An "offence" is defined to mean "an offence against or arising under an Australian law". Proceedings for an offence under s15 and 16 of the Act are clearly, having regard to s47 of the Act, an "offence" and are consequently a "criminal proceeding" as defined in the Evidence Act.

161 The various permutations of connection ("purpose", "contemplation" and "in connection with") as referred to in s147(3)(a) and (b) give rise to various and complex questions. One obvious example would be what degree of "purpose" must be identified before the contents of a document can be said to have been "produced" for one of the identified purposes. However, before considerations of that nature arise, it is essential to emphasise the relevant document in these proceedings is the computerised database from which exhibit L was extracted. It is that document and its connection with the litigation that is to be determined. It is the purpose behind the creation of that document which must be examined. Moreover, having regard to the clear language of the statute, it is a connection with litigation at the point the document is "produced" that is of significance. 162 Each of s147(3)(a) and (b) need to be looked at separately. Firstly, the questions raised by s147(3)(a) may be rephrased by asking whether the "contents of [the computerised database created by the automated Safe-T-Cam system] produced, for the purposes of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding". Having regard to the evidence of Mr O'Neill, the answer to this question must be that it is not. The database is created by an automatic process entirely devoid of any human intervention. There are no proceedings on foot at the time the database entries are created, nor can it be said that the database has been created "in contemplation of … an Australian proceedings". As the evidence of Mr O'Neill makes clear, the information within the database does not operate "on a foolproof basis". The system requires manual checking even prior to a letter being forwarded to the registered owner of the vehicle. As the evidence in exhibit M makes clear, even if the system does accurately detect the location of a vehicle, there may be an entirely lawful explanation for its detection by the system.

163 Moreover, there is nothing in the image itself that could identify the driver of the vehicle - merely the location of the particular truck at a particular time. I consider it to be far too remote a connection with any Australian proceedings for it to be said that the database produced by the Safe-T-Cam system was made "in contemplation of" such proceedings.

164 Similar observations may be made in relation to s147(3)(b). That is, leaving aside any issue of the relevant document "relating" to some criminal proceeding (as there was no criminal proceeding on foot at the time the image was taken by the Safe-T-Cam system), the question asked by the section is were the "contents of [the computerised database created by the automated Safe-T-Cam system] produced, in connection with an investigation …leading to a criminal proceeding". This is a difficult issue as it may be said that the entire Safe-T-Cam system was designed and developed to facilitate the investigation of potential breaches of the road laws. Having regard to Mr O'Neill's evidence, the very reason that digital images form a part of the automated Safe-T-Cam detection process is to permit a manual checking of the system - that is, to facilitate an investigation.

165 Whilst I have had regard to the manner in which the exemptions to the hearsay rule for business records found in s69(3) have been construed in R v Dudko and Edmund-Jones Pty Limited v Australian Women's Hockey Association Inc [1999] NSWSC 285, the information referred to in those decisions was of a different nature to that which is under consideration here. The evidence of Mr O'Neill makes it clear that at least one purpose behind the maintenance of the Safe-T-Cam system was the investigation of alleged breaches of the road laws. I am satisfied that the relevant computerised database, as reflected, in part, in exhibit L, when produced, had a sufficient connection with an investigation into a criminal proceeding so as to activate s147(3)(b) and remove the availability of the presumption otherwise available in s147(2).

Discretionary Exclusion of Evidence 166 The defendant has contended that the probative value of exhibit L was substantially outweighed by the prejudice that may arise from the Court having before it, evidence that may be unreliable and potentially misleading. As noted above, senior counsel pressed this submission in relation to all of exhibit L with the exception of those items that were verifiable by exhibits M and P - noting of course that he contended those entries should be excluded for other reasons.

167 Again, there is a difficulty in dealing conclusively with the discretionary exclusion of evidence at this stage of the proceedings, as there is yet to be full debate on the relevance of items in exhibit L. Any exclusion of evidence requires an assessment of the "probative value" of the evidence and a balancing of probative value against the danger that the evidence might be unfairly prejudicial, misleading or confusing, or result in an undue waste of time. The "probative value" of evidence is defined in the following terms: "probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

168 That is, probative value is determined by the extent to which the evidence is relevant. Thus, as earlier mentioned, any final conclusion as to the exercise of a discretion under s135 of the Act as to the entries in exhibit L falling within the employment period should await a final conclusion as to the relevance of exhibit L.

169 Leaving aside exhibit M and the corresponding entries on exhibit L for one moment, I have earlier concluded that the pre-employment items in exhibit L are relevant to the very limited purpose for which they have been tendered. I am satisfied, however, that if those entries were admitted into the proceedings for that purpose, they would be of very little, if any, probative value. Those entries do not enhance my understanding of the Safe-T-Cam system any further than those items in exhibit L that are verifiable by reference to exhibit M. When taken with the possibility of an inaccuracy in those records, I consider that there is merit in the defendant's submission that the contents of exhibit L falling within the pre-employment period, other than those relating to exhibit M, should be excluded in the exercise of discretion. That does not, of course, preclude their admission at a later date if tendered for some other forensic purpose.

170 Exhibits M, P and the remaining items of exhibit L (that is the entries for 2 April and during the employment period) are, in my view, of provisional relevance (as earlier discussed) and should not be excluded on any other basis. They are admitted on a provisional basis, subject to further hearing from the parties as to the issues of relevance and the exercise of a discretion under s135 of the Act. I would emphasise, however, there remains an issue (to be dealt with at an appropriate time) surrounding the application of s135 - 137 of the Evidence Act.

171 Having regard to the above reasons, it is convenient to summarise my conclusions: 1. Exhibits J, K, L, M, N, O and P are admitted on the voire dire for the limited purpose of determining the relevance of exhibits L, M and P to the substantive issues in the proceedings. Exhibits J, K, N and O were not adduced as evidence in the trial, and hence, they are not admitted.

2. I am satisfied that documents L, M and P are 'authentic' copies of a part of the computerised documents held by the RTA as a part of the management of the Safe-T-Cam system. 3. The hearsay rule does not operate to exclude exhibits L, M or P;

4. The presumptions available under ss146 and 147 of the Evidence Act are inapplicable to exhibit L;

5. The entries in exhibit L for 2 April and 10 July to 1 September 1999 inclusive, and exhibits M and P are admitted as evidence in the trial on a provisional basis. They are marked, on a provisional basis, as exhibits in the trial as follows: a) The entries in exhibit L for 2 April and 10 July to 1 September 1999 shall be exhibit 30. b) Exhibit M shall be exhibit 31. c) Exhibit P shall be exhibit 32. The debate as to the admissibility of evidence encompassing the period of Mr Haynes' employment, both as to relevance and the exercise of any discretion to exclude the evidence, will be addressed at a later stage of the proceedings. It is at this point that any substantial debate as to the accuracy of the evidence will fall to be considered.

6. The items in exhibit L prior to 8 July 1999 (with the exception of the items which correspond to exhibit M) are not admitted into evidence in the trial in the exercise of my discretion.

172 These proceedings are stood over for further hearing at 10 am, Tuesday, 10 June 2003.

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