1. As I have outlined, the footage consists of videotape from two cameras placed in quite separate locations.
2. It appears that a person whose identity is unknown has placed one camera in a tree directly overlooking the starting box of the trial track. It appears obvious that the camera is positioned in the tree because branches of the tree can be seen moving from time to time as the footage is viewed. It also appears obvious that no one is operating the camera as the camera does not pan in and out. It appears to be in a fixed location.
3. I will refer to this footage as being the tree camera footage.
4. I know nothing more than this about the tree camera, and even the matters to which I have just referred are inferences which I am asked to draw from watching the footage rather than facts which can be independently established from other evidence.
5. There is other footage taken from a different angle. It appears to have been located near the channel at one side of the land on which the trial track is situated. It is impossible to say precisely where this footage was taken, or even whether it was taken on land belonging to the Tooradin Trial Track, or on adjacent land. It appears to be taken from a position of some height and that is why it is suggested that I can infer that it was taken from the channel bank, which is a raised strip of land immediately adjacent to the boundary of the land on which the Tooradin trial track is situated.
6. I will refer to this footage as the channel bank footage.
7. The channel bank camera also pans left and right, from which I am asked to infer that a person was actually using the camera and operating it from time to time.
8. Once again I have no independent evidence at all as to this footage. I am asked to draw inferences as to the description I have given above from watching the footage itself.
9. There was in fact ten and a half hours of footage in total taken from these cameras. Only one hundred and five minutes of the footage is relevant to the cases with which I am dealing today. I have watched all this one hundred and five minutes of footage.
10. It is agreed between the parties that the complete footage was handed to the Racing Integrity Commissioner by Animals Australia on 13 February 2015, three days before the Four Corners program was aired. The Commissioner referred the footage to the Police and to Greyhound Racing Victoria on the same day.
11. There is thus no issue about the integrity of the material insofar as what happened to it in the hands of the Commissioner or the Greyhound Racing Board. However it is obvious from what I have just outlined that there is no evidence at all as to who took the footage and how it got into the possession of Animals Australia.
12. The respondent to this application does not know the answers to those questions and is unable therefore to call any person to give evidence about the circumstances under which the footage was taken.
13. So to summarise the things that I do know about the footage.
14. I am asked to draw the inference from watching both sets of footage as to where the cameras were that took both the tree camera and the channel bank camera footage.
15. There will be independent evidence in the hearing from a steward who identifies the location shown in each footage as being the Tooradin Trial Track and in particular can identify the starting box and the approximate locations of each camera having regard to other geographic features of the trial track.
16. There will also be a steward who will give evidence identifying the three applicants in this proceeding where they appear at various times on the footage. The same witness will be able to identify other persons who also appear on the footage and participate in the activities recorded.
17. What I can also say about this footage is that it is extremely clear. There do not appear to be any hazy or low quality sections. As I have said, I have watched the footage in full and I concur with a submission made by the respondent that it appears when it is watched that way that there is no obvious defect in continuity, although I also acknowledge that there is one point at which the footage seems to jump. That point was pointed out to me by counsel for the applicants. The jump does not appear to be at any crucial point.
18. I stress that it is extremely high quality and clear footage. In particular where it depicts matters which will be the subject of this application, such as the placing of rabbits on the lure and the coming and going of each of the applicants, the footage appears of sufficient clarity to be able to understand what is happening at all times, although the view of the rabbits is sometimes obscured by objects or persons on the track, and is also at times too far away to enable clear vision.
19. The footage from the tree camera gives a very good view of the starting box and the channel bank camera gives a very good view of the position at which the rabbits are attached to the lure.
20. There are however many things that I do not know about this footage. Each portion displays a date of the 23 December 2014, and a time. However, the respondent concedes that it is notorious that the date and time on a camera can be easily changed, and that therefore there is no certain evidence as to on what day the footage was taken or at what time.
21. I do not know who took the footage or why, or how it came to be in the possession of Animals Australia, or for how long it had been in the possession of that organisation.
22. It is also not possible to say whether the footage has been doctored or falsified in any way.

1. In those circumstances, the applicants say that the footage should not be admitted into evidence. There are two aspects of this objection. The first is that it is inadmissible as a matter of law because because there is not sufficient evidence of its provenance. The second is that if I find the material admissible as a matter of law, I should exercise my discretion to exclude it because it has been illegally obtained, and also because the probative value of the footage is outweighed by the unfair prejudice that will be caused by its admission.

1. The Racing Appeals and Disciplinary Board determined that the footage was admissible in the proceeding before it. In reviewing the Board's decision I am not bound by that finding. My task is to stand in the shoes of the Board and make a decision on the material before me. The finding of the Board does not influence my decision, as I am to consider the matter de novo.
2. Both parties agree that the respondent has the burden of proving to me that the videotapes are admissible. The applicants submitted that the Briginshaw principles apply to this determination, because of the seriousness of the charges brought against the applicants. The respondent drew my attention to the decision of Karakatsanis v Racing Victoria Ltd[1], in which the Court of Appeal considered it doubtful that Briginshaw applied to the deliberations of this Tribunal, and suggested instead that the Tribunal was in a case such as this required to making a decision to a "comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge."
3. However, the respondent did not suggest that the two formulations would lead to any different result in this case. I did not understand there to be any significant disagreement between the parties on this issue.
4. I also have proceeded on the basis that although the respondent bears the burden of proving that the footage is admissible in this proceeding, that where either party wishes to establish some fact in support of a particular argument put forward, the party relying on that fact bears the burden, on the civil standard, of proving that fact.

1. I will deal with the issue of provenance first. It is commonplace in both criminal and civil trials in this State that where video evidence is introduced, the maker of the video will give evidence as to the fact that the person was the operator of the camera, and brief evidence as to the circumstances under which it was made.
2. The applicants say that satisfactory evidence of provenance must be presented in this way before this video evidence can be introduced. The applicants say that it is a rule of law that there must be evidence from the person who took the footage specifying when and where it was taken, and the circumstances in which it was taken, as an absolute precondition to admission of the evidence.
3. The respondent cannot produce this evidence.
4. In Queen v O'Neill[2] the Court of Appeal considered the question of whether a combined audio and video tape was admissible in evidence.
5. The principal issue in this case was that it was suggested that the audio tape was inadmissible because it was difficult to hear and therefore the evidence was so unreliable that it should not have been admitted. The Court was satisfied that although the quality of the audio tape was generally poor it was not so poor as to be unreliable, and thus it was admitted into evidence.
6. However, in the course of making that determination at paragraph 66 of the judgment the Court said this:

Courts have accepted tape recordings as evidence of the conversations or other sounds recorded on the tape for almost half a century. The circumstances under which the recording was made must be proved, unless the provenance of the recording and its continuity are not in issue, which was the case in the trial.

1. From that paragraph, the applicants say it is clear law that the provenance of any audio or video recording must be proven before the video tape can be admissible in evidence.
2. In O'Neill, the Court referred to Butera v Director of Public Prosecutions, [1987] HCA 58; 164 CLR 180, a decision of the High Court of Australia. In that case a tape recording of conversations implicating the accused was admitted into evidence even though those conversations were in a foreign language. Translations of the conversations were made by interpreters and those interpreters gave evidence of the translation. It is important to note also that complaint was made in that case that the conversation was muffled or indistinctly recorded. It was therefore a difficult job for the interpreters to listen to the recording and provide the interpretation.
3. It was suggested by the applicants that the decision in this case was once again based upon the underlying proposition that the provenance of the tape needed to be satisfactorily proven before the tape could be admissible.
4. I was particularly referred to the following discussion at page 186 of the judgement in Butera:

If the tape is not available and its absence has been accounted for satisfactorily, the evidence of its contents given by a witness who heard it played over may be received as secondary evidence. That evidence is not open to the same objection as the evidence of a witness who repeats what he was told out of court by another person who is not called as a witness. In the latter case the credibility of the other person cannot be tested; in the former case, assuming the provenance of the tape is satisfactorily proved, no question of its credibility can arise. Nevertheless when the tape is available or its absence is not accounted for satisfactorily, there can be no reason to admit the evidence of an out of court listener to the tape recording to prove what the tape recorded; it should be proved by playing over of the tape. Prudence and convenience combine to support the application of the best evidence rule in such a case.

1. The words reproduced in the passage above "in the former case, assuming the provenance of the tape is satisfactorily proved" were particularly emphasised by counsel for the Applicants.
2. The admissibility of tape recording had also been considered in a much earlier English case of Regina v Robson and Ors which is reported in the Weekly Law Reports May 5, 1972 at page 651. The question in this case was whether tape recordings were admissible when it was not clear whether they were the original tape recordings and where the absence of the original tape recordings was not satisfactorily explained. The Judge formed the view after hearing evidence from witnesses concerned in the taking of the tape recordings that the recordings were original and that any difficulties in understanding what was in the tape were matters for the jury.
3. I was particularly taken by the counsel for the applicants to a passage on page 653 of the ruling which reads as follows:

In the first stage, when the question is solely that of admissibility - i.e. whether the evidence is competent to be considered by the jury at all- the judge, it seems to me, would be usurping their function if he purported to deal with not merely the primary issue of admissibility, but what is the ultimate issue of cogency.

My own view is that in considering that limited question the Judge is required to do more than to satisfy himself that a prima facie case for originality has been made out by evidence which defines and describes the provenance and history of the recordings up to the moment of production in Court.

1. The applicants rely upon this passage as being an implicit acceptance of the proposition that the very first stage of considering a tape or video recording is to be satisfied by evidence of the provenance and history of the recordings up to the moment of production in Court.
2. The respondents rely on it as establishing that the judge needs to be satisfied that the tape prima facie authentically depicts the actions to be relied on, and that any issue as to the general cogency of the evidence is a matter for the trial.
3. The applicants then turned to Australian Securities and Investment Commission v Rich and Others, a judgment of the Supreme Court of NSW in 2005[3].
4. This decision concerned entirely different subject matter. The question had arisen in that case as to whether business records could be tendered. The issue arose as to whether those business records needed to be authenticated by the evidence of a person who had either participated in the business and compiled the document, or had found it amongst the records of the business, or could otherwise recognise it as being one of the records of the business.
5. The Court considered whether it was necessary to prove by external evidence that a document which was said to be a record of a business was actually the document it purported to be, or whether the Court was entitled to look at the face of the document to establish this fact without the benefit of supporting evidence.
6. In coming to its conclusion, the Court cited an earlier NSW case of National Australia Bank Ltd v Rusu.
7. Rusu was cited as authority for the proposition that documents, (and by extrapolation videos) cannot authenticate themselves. In other words it is not possible simply by looking at a document to draw an inference that is authentic simply because of what is written on the document, or extrapolating to this case simply because of what is seen on the video.
8. If I were to follow this reasoning, the footage would be inadmissible because it is only by looking at the footage itself that any information can be gained about it, and the offending conduct established.
9. The reasoning in Rusu appears to have been fairly controversial in NSW, and of course it was decided in respect of a written document, rather than a videotape. One may well imagine that a document is less likely to be able to speak for itself than a photographic record.
10. At page 349 of the judgment in Rich the Court observes that although it would be absurd to dispense with the need to prove the authenticity of a document, for that would "put the Court entirely in the hands of whatever document which a party chose to tender purported to be", it was also "important not to set the bar too high for the authentication of documents because any significant organisation depends for its efficiency on the keeping of proper records which are relied upon in the everyday carrying on of the activities of the business and therefore more likely to be accurate and reliable than memory".
11. Thus the Court in Rich acknowledged that a balancing exercise between two significant principles of public policy was required when considering the law in respect to authentication of documents.
12. The particular passage though that is relied upon by counsel for the applicants also appears at page 349 of the judgment and it says this.

But Rusu insists on the need for authenticity to be established, and asserts that authenticity cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance.

1. The applicants say that if this principle is applied to the case before me it requires me to have regard to whether there is any other evidence, apart from the evidence of the tape recording itself, and to reject the tape recording unless there is such other evidence of authenticity.
2. The applicants say that, drawing on the language of Rich, the significant public policy issue behind this approach is to balance the need for acceptance of new technology against the need to ensure that audio or video evidence is not contaminated, or falsified. The applicants say there is a particular risk of such conduct having occurred in this case, as Animals Australia is known to be a virulent critic of the greyhound racing industry, and thus has a clear motive for providing false evidence.
3. So it was those cases on which the counsel for the applicants relied to establish what the applicants said was an accepted proposition of law that in order for evidence of tapes or videos to be able to be introduced the provenance, (that word meaning in the applicants' submission the history and circumstances of the taking of those videos) was a pre-condition.

1. The respondent relied upon R v Chen[4], a 1993 decision of the Supreme Court of Victoria.
2. In that case the Supreme Court sitting as the Court of Criminal Appeal was asked to determine whether the trial judge made an error in law in admitting into evidence a tape recording, in circumstances where conversations between the accused and another person were covertly recorded, but where there was no evidence at all as to who had recorded the conversation or in what circumstances.
3. It was submitted in that case that the tape should not have been received into evidence, although it appears to have been conceded by a defence counsel that there was no absolute rule of law requiring a tape recording in those circumstances to be excluded as evidence.
4. At page 148 of the judgment the Court says this:

There is little doubt that audio tapes are admissible. The admission of tape recordings is a daily feature of criminal trials. As a general rule, there is little difficulty for the Crown to establish who made the recording, the machine on which it was made and that the recorded conversations were heard as well as recorded and that the recording is accurate. The question is whether all these circumstances, without exception, must be shown to exist in order to render admissible the playing of a recording tape. In the present case, all these circumstances were not and could not have been shown to exist because Wilson, who clearly enough made exhibit 137, was dead and Middap, who obviously made the other, was not called.

1. After explaining the circumstances under which Middap was not called, the Court went on to say this:

In our opinion, the problem is to be resolved by reference to legal principle. The law is not so inflexible as to require the fulfilment of the same conditions in every case before a tape may be played and the sounds received in evidence.

1. The Court then referred to Butera and other cases in which tape recordings had been accepted as evidence of conversations or other sounds recorded on the tape and then said this:

It is unnecessary now to consider those conditions but it is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury.

1. The applicants say as a result particularly of this last passage, that Chen stands for the proposition that although each one of the circumstances under which a video tape or audio tape was made need not be proven, and each case will need to be looked at on the basis of its own facts, it is clear from Chen that sufficient circumstances surrounding the creation of the tape must be established by external means before the tape can be admitted into evidence.
2. The respondent says that this case stands for the fundamental proposition that the real issue is the accuracy or authenticity of the recording, not the circumstances under which it was made. In the respondents submission, when one speaks of the provenance of an audio or video, one's attention should be directed to the proof of its authenticity overall, not just issues of the ultimate origin or continuity of the tape.
3. At page 149 of the judgment in Chen the Court quotes with approval a decision in R v Maqsudali[5]. I particularly note the citation with approval of the following paragraph at page 701 of the original decision in Maqsudali.

For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints have seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescope or binoculars which otherwise could not be picked up by the naked eye had been admitted, and now there are devices picking up, transmitting, and recording, conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances in each case.

1. The respondent says that the emphasis in both Maqsudali and Chen is on being able to establish that the person who said the words on the audio, or who did the deeds depicted on a video, can be identified. Thus at page 150 of the judgment in Chen it is pointed out that:

There must be evidence, for example, as to who made the sounds and that the sounds constituted statements which are relevant and admissible, provided, or course, that they were made voluntarily or not otherwise in circumstances which might found discretionary exclusion.

The question is what other conditions, if any, should be met. The answer, we think, depends on the circumstances of each case. The test is whether there is sufficient material before the Court to allow the tribunal of fact acting reasonably to conclude that the recorded sounds reproduced were originally made by the persons identified by the evidence. In other words, there must be evidence, which the tribunal of fact is entitled to accept, that the recording is of a conversation which occurred and which would be admissible if proved by oral testimony. In our opinion, admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate. In the present case, there was good reason to conclude that such a chance had in any event been substantially rendered remote.

1. So the respondent submits that in this case there is evidence positively identifying each of the applicants as being the persons depicted in the footage. There is an extremely clear view of what each person depicted in the video was doing. There is a very clear view of what is happening on the track. The track itself is identified by another witness as being the Tooradin Trial Track. The respondents are identified by other evidence and there appears no challenge in this case to that identification.
2. Further, when Mackie gave evidence before the Board he accepted that he had been at the track and that he was depicted in the footage. There has been no suggestion in the arguments of the applicants that any of the applicants say that the footage inaccurately depicts their movements on the day on which it was taken. The real issue at trial will be whether the footage of the rabbits shown on the lure depicts the rabbits as being alive or dead, and if the rabbits were at any stage alive, whether the footage of the applicants reveal that they knew that this was the fact when they released their greyhounds for trial.
3. It was submitted by the respondent that in those circumstances even though there was no evidence as to who made the video or the circumstances in which it was made, the evidence shows that there is only a very remote chance that the evidence is other than accurate, and that to call the maker of the footage will not assist one way or another in deciding the issues before this Tribunal..
4. The respondent argues that in those circumstances provenance - in the sense of establishing the authenticity of the tape - is well and truly established and that it is not necessary as a matter of law to call the person operating or placing the camera at the site. In the language of Chen, this Tribunal has sufficient material before it to conclude that the videotape images faithfully reproduce what was actually done by the various applicants and persons depicted in the video.
5. The respondent submits that thus the authenticity of all of the footage can be readily inferred from its context, and that there is nothing at all to be gained from calling the camera operator, whose identity in any event cannot be ascertained.
6. As to the question of the possibility of tampering with the video, the respondents point to and rely on the passage from Chen at page 150 of the judgment as follows:

In our opinion, admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.

1. The applicants contend that in effect, by being asked to rely on inferences drawn from watching the footage, I am being required to engage in inappropriate guesswork and speculation. The applicants suggest that this speculation could be easily dispelled if the camera operator was called, and that nothing less than this will suffice as a matter of law to establish provenance. The applicants suggest I should infer, relying on Browne v Dunn, that the fact that this evidence is not to be called should lead me to infer that if the camera operator was to give evidence, that evidence would not assist the respondent.

1. Both the respondent and the applicants accept that the rules of evidence do not apply to this Tribunal. However, these arguments as to provenance were put by the applicants on the basis that the principles established were common sense principles designed to ensure that the evidence before the Tribunal was evidence that could be relied upon.
2. I accept that the principles enshrined in the cases to which I have been referred by both the applicants and the respondent are of significant weight in deciding the question before me. I accept that I should apply these principles, given the gravity of the allegations made against each applicant, and also given the importance of this evidence to the trial.
3. I do not consider that any of the authorities relied upon by the applicants provide clear confirmation of the proposition that a decision to admit the video recording, in the absence of any evidence as to who made the recording, would amount to an error of law.
4. I also do not consider that the principle in Browne and Dunn is relevant on the present state of the evidence. The principle applies only where a party fails to call a witness without adequate explanation. I accept for the purpose of this ruling that the respondent's case is that the witness cannot be identified. This conclusion applies only to this preliminary issue. I make no comment as to its possible application in the trial.
5. The authorities to which I have been taken suggest that all the circumstances surrounding the creation of the video should be assessed. The aim of the assessment is to satisfy myself that the evidence is capable of supporting a conclusion that what has been recorded in the video reproduces what was actually done by the persons depicted in the video.
6. I accept the respondent's submission that my focus should be on determining the authenticity of the footage, in the sense of whether it faithfully reproduces the actions of the applicants and other persons which are the subject matter of this proceeding. I accept that it is appropriate to draw the inferences relied on by the respondent, taking into account both the subject matter of the footage itself and the external evidence of identification of the track and the persons in the video which will be called in this proceeding.
7. I accept the respondent's submission that it does not have to remove any possibility of the footage being inaccurate. The possibility of falsification is a matter of weight, not admissibility.
8. My conclusion is that the footage is admissible as a matter of law as evidence of what was done by the persons depicted in the video on the day on which it was recorded. Its relevance does not depend on the production of the camera operator. There is no evidence before me at this preliminary stage which suggests that the footage has been tampered with. I accept the footage as being a reliable evidentiary foundation to establish the actions of the persons depicted in it and the conformation of the Tooradin trial track at the time those actions took place.
9. I stress that at this point I am dealing only with the admissibility of the evidence, and not the ultimate question of whether any of the applicants are guilty of the conduct which the video is said to depict. This is a decision for the trial, not a decision that is appropriate at this preliminary stage.
10. Insofar as the applicants pressed an argument that it would be unfair to introduce the evidence, I have dealt with those arguments later in these reasons in considering the question of whether I should exercise my discretion to exclude the evidence, rather than as being relevant to my determination as to whether the evidence is as a matter of law admissible.
11. As to this, I note in particular the observation of the Court in Robson at page 655 of the judgment:

It may be difficult if not impossible to draw the philosophical or theoretical boundary between matters going to admissibility and matters going properly to weight and cogency; but as I have already said, it is simple enough to make a practical demarcation and set practical limits to an enquiry as to admissibility of the correct principle is that the prosecution are required to do no more than set up a prima facie case in favour of it. If they should do so, the questioned evidence remains subject to the more stringent test a jury must apply in the context of the whole case, namely, that they must be sure of the authenticity of that evidence before they take any account of its content.

1. Whilst acknowledging that the Evidence Act 2008 does not apply in this Tribunal, the applicants point out that section 138 of the Evidence Act 2008 provides that evidence which is illegally obtained is inadmissible unless the person seeking to rely upon that evidence can demonstrate that its admission is warranted having regard to certain factors set out under that section.
2. The applicants submit that I should pay close attention to the requirements of section 138, as the section is directed to resolving a public policy issue of great importance. That is that evidence which is illegally obtained ought not be admitted in evidence because a Court or a Tribunal must not condone illegal activity. I do accept that this policy is of significant relevance to me in determining this application, even though I am not bound to follow the requirements of section 138.
3. The applicants also rely on the principles set out in section 135 of the Evidence Act. That section provides that a Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. The provisions of section 135 are duplicated in relation to criminal proceedings in section 137, which provides for mandatory exclusion of evidence where the probative value is outweighed by the danger of unfair prejudice to an accused.
4. Once again it is not suggested by either party that I am bound to follow either of these provisions. I do accept however that these provisions represent a common sense and valuable way to approach the issues which have been raised in this application. Those sections represent Parliament's considered attempt to resolve competing policy issues involved in admitting evidence such as this, and the factors set out in those provisions are very relevant to my task.
5. So the first issue to determine is whether either or both of the recordings were illegally obtained. The applicants say that this is so.
6. The applicants say that the obtaining of each set of footage must have been by way of a tortious or a criminal trespass, and is thus illegally obtained evidence.
7. Slightly different facts are said to apply to each of the cameras.
8. Both parties agree that the tree camera was positioned on the land belonging to the owner of the Tooradin trial track. Both parties also agree that the owner did not give permission for this incursion onto the land, and that the circumstances surrounding the placing of the camera on the land must have involved a civil trespass to the land.
9. The applicants go further to assert that the same must be said of the bank camera. The applicants filed an affidavit exhibiting a title search and other documents relevant to the ownership of the lands adjoining the Tooradin trial track. Those documents show that the bank identified on the video is situated on a water easement identified as the Tooradin Inlet drain.
10. The applicants say that the taking of footage from this position must have necessarily involved a civil trespass, either to the land on which the Tooradin trial track was situated, the easement on which the bank is situated, or to the adjoining private property identified on the title searches.
11. I record that I am not persuaded that the recording on the bank camera was obtained by way of a civil trespass. I have no evidence at all as to whether the presence of the camera operator on the easement or the adjoining land was with or without the consent of the owners of those parcels of land. I also have no evidence establishing that the camera operator trespassed onto the land on which the Tooradin trial track was situated to obtain the bank camera footage. If it was not on that land and was on either a water easement, or an adjoining property there is no evidence before me to suggest that the owners of that land did not give permission for the recording to be made from their property.
12. I regard the evidence whether for or against the proposition to be so sparse as not to enable me to make a decision either way. In the absence of evidence I am not prepared to make the inferences contended for by the applicants.
13. This means that the submission that the footage was obtained illegally relates only to the tree footage.
14. The applicants go further and say that not only was the obtaining of the footage a civil trespass, it was also a criminal trespass. The applicants referred me to section 9 of the Summary Offences Act 1966, and particularly relied on subsections (e) and (g) of that section.
15. Those sections read as follows:

(e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or

(g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace -

1. The applicants said that all the elements of both of these offences were made out from the circumstances of placing of both cameras. Counsel for the applicants argued in relation to subsection (g) that the elements of this subsection were satisfied in that had the operator been discovered when placing the tree camera in position, he must have anticipated a scuffle or at least a spirited argument with the occupiers, and therefore that a breach of the peace would have occurred, having regard to the circumstances surrounding his entry to the property.
2. The respondent took issue with the questions of whether the entry took place without lawful excuse, and in relation to (e) whether the entry could be said to have been wilful, or not for a legitimate purpose.
3. The applicants point out that the trespassing involved was deliberate and sustained over an extended period of time. The applicants suggest that it was unnecessary for the evidence to be obtained in this way as if the police or other authorities were informed they would have statutory powers to undertake a covert surveillance.
4. The applicants rely upon several cases to support the proposition that the law views infringements of the right of private property very seriously.
5. The first such case in time is Klein v Bryant[6].
6. Klein was as decision of a Master of the Supreme Court of the ACT. The question in that case was whether a party was entitled to rely upon a surveillance video taken in respect of a personal injuries claim in circumstances where the camera operator had trespassed onto the plaintiff's property.
7. In that case the Master considered himself bound by section 138 of the Evidence Act 2008.
8. The applicants have taken me to some passages from the judgment which bear a strong resemblance to the issue before me.
9. At paragraph 48 of the judgment the Master says this:

It is common ground that the surveillance operative committed an unlawful act, being a tortious wrong in entering the plaintiffs land to obtain the film. The defendant concedes this, but says that this is only a minor wrong, and that the public interest should weigh in favour of admission of film.

The defendant argued that a defendant has only limited opportunities to test claims of disability, and that the use of surveillance material is an important part of the limited range of forensic weapons that a defendant (or in truth their insurer) has available to combat false or fraudulent claims.

1. The Master identified the strongest factor in his decision as being the undesirable ability of providing curial approval or even encouragement of the practice of trespassing onto a person's home without permission. The Master considered cases such as Bunning v Cross[7] and Ridgeway v The Queen[8]. He noted that private surveillance operatives operate in an area relatively free of oversight and control. The applicants say that this is comment is apposite in this case as well.
2. The Master concluded that, and I quote:

But to permit or, as the High Court has noted, perhaps encourage, surveillance operatives to enter farm land or private dwelling properties would in my opinion be most undesirable. While an Australians home may no longer be their castle, a person is entitled to expect that they will not be subject to intrusive surveillance from persona unlawfully entering onto their property.

He determined that the video material should not be admitted into evidence.

1. The applicants say that this observation describes the issue in the case before me with uncanny accuracy. The applicants urged me to also show this Tribunals disapproval of the method employed in securing the footage by excluding it from this trial.
2. I was also taken to a decision of the Court of Appeal in DPP v Marijancevic and Ors[9] as another illustration of the importance which the Courts attach to discouraging breaches of the law, even if unintentional and in some respects minor.
3. This decision concerned a practice which had arisen within Victoria Police of search warrants being issued and acted upon without strict compliance with the need to swear or affirm affidavits in support of the issue of those warrants. In the course of the judgment the Court said this:

A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state.

1. The applicants asked me to treat this passage as another example of the grave importance attached by the Courts to infringements upon the private property rights of a landowner.
2. I am not persuaded that the applicants have demonstrated that the footage from either camera was obtained by way of a criminal trespass. There are too many aspects of the entry onto the property which are simply unknown. However for the purpose of this ruling I will proceed on the basis that the tree camera was used in a situation where there was a trespass to land, and that there are aspects of that trespass which suggest it is arguable that there are at least some elements pointing to a breach of the criminal law.
3. Whichever be the case, it is clear that that to enter on someone else's land to take video footage clandestinely is behaviour that should not be encouraged by the Tribunal.
4. I accept this as a significant factor weighing against admission of the tree footage.
5. There are other factors also militating against admission of the evidence, and here I am referring to both the tree camera footage and the bank camera footage.
6. The applicants submit that where the means by which the evidence has been obtained have the effect that the applicants cannot effectively respond to that material then the evidence ought not to be admitted.
7. The applicants say that if the footage is tendered without explanation then issues to do with the reliability of the footage, such as whether it has been tampered with, or whether it represents the full footage from that day cannot be explored by the applicant, and that this will result in significant injustice.
8. Further, the applicants say that I can have no confidence that the video accurately portrays what actually happened and when it happened. It submitted that it is not even apparent from the video evidence that the rabbit is alive.
9. Further, the applicants say that the probative value of the evidence, at least in relation to Mr Mackie is low. It points out that Mr Mackie's evidence is that he did not see what was on the lure and he did not play any part in putting the rabbit whether alive or dead on the lure. His evidence will be that he was unconcerned about whether there was a dead rabbit or a jumper on the lure.
10. The applicants submit the only true value of the footage is to demonstrate that if the rabbit was alive Mr Mackie plainly was not aware of that fact, because it never shows him looking at the rabbit when it appears to move. I was asked to see that allegations against Mr Mackie as involving little or no moral turpitude given that it is not alleged that he knew that the lure contained a live animal. The applicants asked me to contrast these allegations which it says are at the bottom end of the spectrum of conduct that might infringe against the greyhound rules as against the trespass clearly committed by the person taking the film.
11. Overall the applicants submit that I should apply the principle that if the undesirability of including the evidence outweighs the desirability of excluding it, then the evidence would not be admitted.
12. By contrast the respondent suggests that the trespass has no logical bearing upon the admissibility of the footage. The respondent points out that the trespass was a trespass against the rights of the occupiers of the track and not directly against the rights of either of the three applicants.
13. The respondent also points out that the trespass has not affected the probative value of the footage. The respondent submits that the probative value of the footage is very great. It shows that various points live rabbits being attached to a lure and the applicants participating in trialling their dogs in circumstances where their dogs are chasing the live lure. The respondent emphasises the footage is complete, clear, not edited and says that its authenticity as to the fact that it clearly depicts events relied upon in this hearing can be readily seen when material is viewed.
14. When weighed against the desirability of bringing wrong doers to justice, and particularly in the context of this case of obtaining evidence of an abhorrent practice of live baiting which could not easily have been obtained in any other way, then the balance it was submitted falls heavily in favour of admission.
15. The respondent points out that there was no deception or trickery involved in obtaining the footage and that the footage does not compromise any of the rights of the applicants. It was suggested that the use of the footage is not unfair on the applicants. Indeed the respondent suggests that the footing is absolutely convincing and the importance of the evidence is crucial in the prosecution of serious offences of this description.
16. On the other hand the applicant points out that because the respondent maintains that the offence is one of strict liability, the case against each of the applicants does not necessarily involve knowing complicity in the events, but may be merely lack of knowledge of what was occurring at the track.

1. It is my view that the desirability of introducing the video evidence far outweighs issues of unfairness to the applicants. I acknowledge that there will be aspects of the admission of the footage which have the potential to cause unfairness to the applicants. The applicants will have no clear way to ascertain whether any part of the footage has been falsified, although having viewed the footage in full there was nothing in it that I could see at this preliminary point to give rise to any positive suggestion that this had occurred.
2. The applicants say it is impossible to be sure that we have the full footage, and that on some occasions the images of the rabbits show very fine movements which cannot be easily evaluated.
3. I agree that this is true. However, there is no real dispute about the identity of the applicants in relation to the footage. There appears to be a complete record on the footage of the arrival, presence and departure of each of the applicants. That evidence does not appear to be contradicted. It is the evaluation of what each of the applicants was doing that appears to be the issue in this case, and not whether the footage accurately depicts them. It does not appear to be disputed that there were rabbits placed on the lure at various times. There appears to be little dispute about anything in the footage except for the question of whether the rabbits which were strapped to the lure were alive or dead, and whether any or all of the applicants saw the rabbits when they were placed on the lure and knew whether they were alive or dead at that time they trialled their greyhounds.
4. There will be expert evidence in this hearing from two veterinarians who having viewed the footage have opposing views about whether the footage shows live or dead rabbits. This issue can be ventilated by the applicants without significant unfairness. I agree with the respondent that any evidence given by the operator of the camera is not likely to add very much to the relevant evidence in this case.
5. I agree that the evidence is of very high probative value. I accept that although it was obtained in less than ideal circumstances there is no evidence of entrapment or coercion, and no suggestion of trickery or deception. The applicants were simply filmed going about their normal business. I also accept that any impropriety cannot be attributed to the respondent in this case, who simply received the footage from the Racing Integrity Commissioner.
6. I accept also that it is relevant to the exercise of my discretion that the footage was obtained in order to expose a grave social wrong, and that the seriousness of the alleged conduct of the applicants is a significant factor favouring admission. Of course I make no finding at this stage as to whether any of the applicants have actually engaged in that conduct. I accept also the argument put that on one view of the evidence against Mr Mackie, his conduct even if proven is at the lower edge of the scale of seriousness.
7. It is also true that this Tribunal must denounce unlawful conduct as I have described it on the part of the camera operator. I acknowledge the force of some of the observations in the cases cited to me by the applicants in this respect.
8. However, when a discretion to admit evidence is to be exercised, it is inappropriate to simply compare outcomes from other cases. I need to weigh up all of the factors pressed in argument in order to obtain a just result. In this case I am persuaded that the balance is clearly in favour of admission of the footage.
9. Having regard to all of the matters I have mentioned above I determine that the respondents application to use the video footage as evidence in this case is granted.

1. In argument before me, the applicants submitted that they were under some difficulty in fully arguing this matter as a preliminary issue. As I understand it, the applicants were concerned that until the applicants had the opportunity to cross-examine the respondents about the circumstances in which the footage came to be in the hands of the respondent, all of the evidence regarding this issue would not be available. I was not told of the potential nature of this evidence. Clearly if there was evidence, for instance, pointing to actual tampering with the videos, or other evidence impugning the footage, my decision in this application would have been different.
2. I record that it is open to the applicants to renew this application if further relevant evidence, not able to be ascertained at this preliminary stage, becomes available during the course of the hearing.

[1] (2013) 42 VLR 176

[2] [2001] VSCA 227

[3] 2005 NSWSC 417

[4] [1993] VicRp 64; (1993) 2 VR 139

[6] 1998 ACTSC 89

[7] [1978] HCA 22; (1978) 141 CLR 54

[8] 1994 - [1995] HCA 66; 1995 184 CLR 19