[2008] FCA 1038
BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304
IMM v The Queen (2016) 90 ALJR 529
[2016] HCA 14
Kang v Kwan [2002] NSWSC 1187
Lewis v Nortex Pty Ltd (in liq)
Source
Original judgment source is linked above.
Catchwords
[2008] FCA 1038
BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304
IMM v The Queen (2016) 90 ALJR 529[2016] HCA 14
Kang v Kwan [2002] NSWSC 1187
Lewis v Nortex Pty Ltd (in liq)
Judgment (3 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Murphy's Lawyers (Accused)
File Number(s): 2013/382738
[2]
Judgment
Introduction
On 17 October 2016, I ruled that the tender of a representation contained in voir dire exhibit G (VD ex G) should be rejected. At the same time, I ruled that a representation contained in voir dire exhibit H (VD ex H) was admissible. I indicated on that occasion that I would give my reasons for those rulings later, a course with which both counsel were content. This judgment constitutes those reasons.
Background
The background to the rulings can be found in a number of earlier judgments of mine, perhaps the most useful of which is R v Adams (No 2) [2016] NSWSC 1359.
In a nutshell, the accused is standing trial by judge alone on a count of murder alleged to have been committed on 24 September 1983. The Crown case is that the accused choked or strangled Ms Mary Wallace (the deceased) with intent to force her to have sexual intercourse with him whilst they were alone together in his motor vehicle very early one morning, they having met at a wine bar earlier that night, and that he thereby committed murder pursuant to the doctrine of felony murder.
The foundational offence relied upon for the purposes of felony murder (as it then was, pursuant to s 18 of the Crimes Act 1900 (NSW)) is the offence to be found in s 37 of the same Act (again, as it then was).
Although it is not disputed by the accused that he was in the company of the deceased early that morning, there is little, if any, direct inculpatory evidence as to what occurred between them (the accused, in interviews with the police, has given an exculpatory account). To a large extent, the Crown case is founded upon inferences said to be able to be drawn from tendency evidence given by three separate women (the tendency complainants): my judgment in R v Adams [2015] NSWSC 1960 sets out the background of that contention, including my pre-trial determination that the evidence was admissible.
One of those women is Ms Karen Brown (pseudonyms of the tendency complainants have been used consistently throughout the proceedings, and in all of my judgments). She gave evidence in the trial by way of AVL link on 4 October 2016 and 5 October 2016.
In summary, her evidence was that, in late July or early August 1978, she met a man at a nightclub on the lower North Shore of Sydney who, in some but not all ways, matched the appearance of the accused as it was then. Her position is that, after she accepted an offer of a lift home from that man, he brutally raped her, both at a harbourside reserve in the inner northern suburbs, and subsequently at a private home somewhere in the vicinity of Wahroonga. Her evidence was that the perpetrator strangled her whilst sexually assaulting her.
Ms Brown gave evidence that, eventually, the perpetrator freed her the next morning. She informed friends of what had occurred, and briefly informed the police, but was too terrified of the perpetrator to take the matter further.
Her evidence was also that, over a period of more than three decades, she had memorised the number plate of the vehicle of the perpetrator, so that she could be on her guard if he were ever to return.
In 2013, the officer in charge of the investigation of the disappearance of the deceased, Detective Senior Constable Jones, recorded that Ms Brown recalled the number plate of the vehicle used by the perpetrator as being DMB 055 or DMB 065.
Turning to the documents the subject of objection, VD ex G contains a representation that the "Vehicle Used (year, make, colour, etc.)" by the accused was a "1964 Holden sedan, brown with white top, DMB 055". The date listed in the top left corner of the form under the heading "5. Date Committed" is "16.9.78". I shall discuss the context of that representation in more detail shortly.
It was agreed between the parties that VD ex H contains a representation that, as at 19 September 1978, the accused, Robert John Adams, was the owner of a "64 holden sedan. brown/white roof. no DMB-055". Again, I shall discuss the context in more detail later.
In other words, although there were some aspects of the description and modus operandi of the man who sexually assaulted Ms Brown that could be said to support the proposition that the perpetrator was the accused, the link between the recollection of Ms Brown about the number plate (recorded in the year 2013) and the representations about the car registrations (contained in VD ex G and VD ex H) is an important part of the Crown case.
Consequently, the joint position of both counsel, and accepted by me, was that this question of admissibility was an important one. Accordingly, quite some time was taken with regard to it, including the receipt by me of very helpful written and oral submissions from both counsel.
Voir dire exhibit G
Attributes
Turning first to VD ex G, it is headed "NSW Police Department Further Crime Information Report". It deals with the offence of "assault female" alleged to have been committed by the accused (the document contains the words "17. OFFENDER 1" and "18. NAME ROBERT JOHN ADAMS") at an address in Neutral Bay on 16 September 1978. (For clarity, I record that the complainant with regard to that allegation is not one of the three tendency complainants in the trial.)
On its second page, the document provides a narrative of the alleged offence that one can infer was based largely on a statement taken from the complainant. On its first page, it speaks of the accused having been arrested with regard to that allegation on 19 September 1978. The following appears above that on the first page: "16. Vehicle Used (year, make, colour, etc)" as part of the form. Immediately below that appear the following words, typed into the document with a typewriter: "1964 Holden sedan, brown with white top. DMB 055".
Crown submissions
There was no dispute between the parties about the relevance of the representation contained in that document, in light of the background that I have sketched. Accordingly, the representation is prima facie admissible, pursuant to s 55 of the Evidence Act 1995 (NSW).
The learned Crown Prosecutor accepted that that representation, made out of court and tendered to prove the truth of its contents, contravened the rule against hearsay contained in s 59 of the Evidence Act. He also accepted the concomitant proposition that, unless the representation contained in VD ex G fell within one of the exceptions to the rule against hearsay contained in the Evidence Act, then the representation that the accused used a "1964 Holden sedan, brown with white top, DMB 055" could not be tendered in order to prove the truth of it.
The Crown Prosecutor relied upon the exception to the rule against hearsay to be found in s 69 of the Evidence Act. In its entirety that section is 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).
It was contended by the Crown Prosecutor that (in accordance with s 142 of the Evidence Act) I would be satisfied on the balance of probabilities that (in accordance with s 69(1)(a) and (b) of the Evidence Act) VD ex G is or was a document that formed part of the records kept by an organisation in the course of a business, as that latter concept is defined in the Dictionary to the Evidence Act. It was said that the New South Wales Police falls within that definition, and did so as at the date when the document came into existence, seemingly 1978.
It was also submitted that, again making findings on the balance of probabilities with regard to a question of admissibility, and drawing inferences from the document as a whole (in accordance with s 183 of the Evidence Act), I would be satisfied that the representation was made, at the least, on the basis of information indirectly supplied by a person who might reasonably be supposed to have personal knowledge of the fact asserted in the representation, in accordance with s 69(2)(b) of the Evidence Act.
Furthermore, the Crown Prosecutor accepted that s 69(3) of the Evidence Act can, in some circumstances, operate to exclude business records that would otherwise be admissible as an exception to the rule against hearsay; in other words, he accepted that s 69(3) of the Evidence Act can constitute an "exception to the exception" to the exclusionary rule against hearsay.
He further accepted that I am entitled to infer from the document both that the representation was prepared in contemplation of an Australian proceeding, and that the representation was obtained in connection with an investigation (at the least) relating to a criminal proceeding.
His submission, however, was that, properly understood, s 69(3) of the Evidence Act does not operate to render the representation inadmissible. In summary, he submitted that, because the proceeding or investigation that related to the creation of the representation to be found in the document was not the criminal proceeding in which the representation was tendered, then s 69(3) does not operate to exclude it. In other words, he submitted that, for the exclusion in s 69(3)(a) or (b) to operate, the proceedings connected with the representation must be the same proceedings in which the representation is tendered. He relied upon what was said by Santow J in Kang v Kwan [2002] NSWSC 1187.
I respectfully consider that there are some powerful arguments to the contrary.
First, as a matter of statutory interpretation, I consider it important that both s 69(3)(a) and s 69(3)(b) use the indefinite article "a" or "an", rather than the definite article "the". In other words, if Parliament had intended the "exception to the exception" to operate only in the limited circumstances for which the Crown Prosecutor contended, I think that Parliament would have expressed itself differently, and semantically linked the connected proceedings with the proceedings in which the representation is being tendered.
Secondly, the tide of authority runs very much against the submission. In Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083, Hamilton J put forward a number of propositions with regard to s 69 of the Evidence Act. In particular, at [4] his Honour said:
[4] In my view, the following relevant propositions flow from the section considered in the light of that authority:
(1) It is important, as is general in exercises of statutory construction, to construe words in s 69 in the context of the section and of the EA [the Evidence Act 1995 (NSW)] generally. In doing this, it should be borne in mind that the EA supersedes not only the common law but the provisions as to admissibility of business records previously contained in Part IIC of the Evidence Act 1898. What must be concentrated on are the words of this section in the context of the EA.
(2) It is important always to bear in mind that what may be tendered as evidence which evades the hearsay rule under the provisions of s 69 is not documents but representations in documents. In this regard, it is only in relation to the penultimate paragraph of the letter, to which I have referred, that tender is made by Mr Motbey under s 69.
(3) The cases in general terms indicate that the inclusive provisions of subss (1) and (2) of s 69 should be regarded as being of wide import and construed accordingly: Schipp v Cameron (No 3); ASIC v Whitlam at [155], both supra. Equally, the exclusory provisions of s 69 ought be construed as sections of wide import. In particular, it should be borne in mind that the expression contained in s 69(3)(a), "in contemplation of" and the expression contained in both s 69(3)(a) and (b) "in connection with" should be regarded as words of wide meaning: R v Rondo supra at [96] per Smart AJ.
(4) It should also be noted that what is referred to in subss (3)(a) and (b) respectively is not the proceeding in which the tender of material is sought to be made, or a proceeding to which the investigation referred to in (b) has led, but simply a proceeding or an investigation.
[emphasis added]
That analysis of s 69(3) has been adopted on very many subsequent occasions: see Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (2008) 170 FCR 9; [2008] FCA 1038; BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304; and Thaler v Amzalak (No 3) [2013] NSWSC 1315. And it can be seen that that analysis is directly contrary to the submission of the Crown Prosecutor.
Thirdly and finally, the underlying rationale for the "business records" exception to the rule against hearsay is one of reliability founded upon regularity and repetition, combined with an absence of motive on the part of a representor to be untruthful (consciously or unconsciously), in the absence of the possibility of subsequent civil or criminal litigation. Section 69(3) excludes evidence that cannot be characterised as coming within that rationale.
In other words, the rationale of exclusion is not based upon the mere fact of whether the representation contained in the document came into existence in connection with this litigation or that investigation; rather, it is founded upon the detrimental effect on reliability that any litigation or any investigation could have upon the representation.
In short, the rationale for the admission of business records as an exception to the rule against hearsay, and the rationale for the "exception to the exception", does not fit comfortably with the reading for which the Crown Prosecutor contended.
To my mind, those three factors argued strongly in favour of the evidence being rendered inadmissible by way of s 69(3) of the Evidence Act.
In other words, even accepting (for the sake of argument only) that the preconditions contained in s 69(1) and s 69(2) of the Evidence Act are established with regard to VD ex G by the Crown on the balance of probabilities, I consider that the tendered representation is excluded by way of the operation of s 69(3) of the same Act.
Voir dire exhibit H
Attributes
VD ex H is a typed document that bears in its top right hand corner the typed date "4th May 1972". To the right of that appears in printing "M5182". The document bears the printed heading "C.C.I." It pertains to the accused, and records details of his appearance, investigations of his alleged crimes (along with dates), and the details of vehicles and addresses said to be associated with him.
The representation contained in that document tendered by the Crown, and objected to by defence counsel, is "ADAMS… Robert John… 19.9.78 Owner of 64 holden sedan. brown/white roof. no DMB 055". As I have said, the Crown submission, not disputed by defence counsel, was that that part of the document is to be understood as being a representation that, as at 19 September 1978, the accused was the owner of a vehicle that was a 1964 Holden sedan, brown in colour with a white roof, with the registration number DMB 055.
VD ex H is a portion of voir dire exhibit M (VD ex M). The latter is a bundle of documents that was located years later in the box of exhibits connected with the investigation of the disappearance of the deceased in September 1983.
Undisputed aspects
With regard to questions of admissibility, there was no dispute that a representation that the accused as at 19 September 1978 owned a vehicle with the number plate DMB 055 was relevant, as that concept is defined in s 55 of the Evidence Act. That is unsurprising, because, as I have said, the tendency complainant Ms Brown gave evidence in the trial that she had memorised the number plate of the motor vehicle driven by the man who brutally raped her in late July/early August 1978: either DMB 065 or DMB 055. In other words, the Crown submission is that the representation in VD ex H provides an inculpatory link between the perpetrator of the sexual assaults upon Ms Brown and the accused, which in turn informs the question of whether the accused possessed a tendency said to be relevant to the count of murder.
Nor was it disputed between the parties that s 59 of the Evidence Act generally prohibits the receipt of out of court representations to prove the truth of their contents. In other words, unless an exception to the rule against hearsay can be established by the Crown, the representation would be inadmissible.
Separately, it was agreed that s 183 of the Evidence Act permits me to draw inferences from documents in determining questions of admissibility related to those documents. In other words, I am entitled to draw inferences, both from VD ex H and VD ex M.
A further preliminary matter was that defence counsel resisted any reliance by the Crown upon the mechanistic provisions facilitating proof of a document to be found in s 48 of the Evidence Act. Because the Crown Prosecutor made it clear, however, that he was not relying on that section, I need not discuss it further.
Finally, it was agreed that the moving party on a question of admissibility must establish matters of fact on the balance of probabilities, in accordance with s 142 of the Evidence Act. Having said that, there was a dispute about whether the Crown or the accused was the moving party with regard to a particular question; I shall detail that dispute shortly.
The exception to the rule against hearsay upon which the Crown relied in support of the admission of the representation contained in VD ex H was, again, the "business records" exception contained in s 69 of the Evidence Act. Admission of the representation pursuant to the section was resisted by defence counsel on a number of separate bases. I have already set out that section, and it is useful to explain my analysis by moving through the constituent parts of the provision seriatim.
First dispute - business record as defined?
With regard to s 69(1)(a), the Crown submitted that I would infer on the balance of probabilities that VD ex H is or was part of the records kept by an organisation for the purposes of a business. The submission was that I would infer that the document was part of the records of the New South Wales Police Service, which, it was said, falls within the definition of a business to be found in the Dictionary of the Evidence Act.
Defence counsel did not deny that the Police Service falls within the definition of a business. He submitted, however, that I could not be satisfied that the document is a business record as defined. That is because, he submitted, as a matter of statutory interpretation I would need to be satisfied not only that the document was a record of a business, but also the record of a particular business.
In discussion between Bench and Bar table about a possibly instructive example, defence counsel submitted that, if a party tendered a receipt for a credit card purchase that related to an item of clothing and that undoubtedly emanated from either David Jones or Myer, but one could not tell from which of those department stores it came, then the receipt would not fall within the definition of a business record and would be inadmissible.
He went on to submit that the evidence of retired police officer, Mr John Andrews, on the voir dire was against the proposition that the document was a police document, in that Mr Andrews did not recognise the particular page of VD ex M that was a copy of VD ex H as such. Indeed, the evidence of Mr Andrews was that, in his experience, all police documents in those days bore the letter "P"; VD ex H does not.
Furthermore, defence counsel submitted that, looking at VD ex H as a whole, it is quite possible that other organisations (such as the Department of Corrective Services, or the Department of Immigration) created and retained such documents.
I resolve this first dispute as follows. To my mind, one can safely infer that the document was created for the purposes of a business. By that I mean that it is virtually inconceivable that a person would create such a document - featuring as it does a printed form with typed details, and recounting as it does aspects of the life of the accused over a period of some years - for personal or private purposes. I am satisfied on the balance of probabilities that VD ex H is a record of a business.
Secondly, contrary to the submission of defence counsel, I do not read into s 69(1)(a) of the Evidence Act a requirement that one must be satisfied that a document emanates from a particular business. In other words, returning to the example of the credit card receipt, I would regard such an item as admissible, even if one could not say affirmatively whether it was created by David Jones or Myer. I say that because the sub-section in question does not, by its terms, require specificity about a particular business.
Thirdly, and in any event, I am affirmatively satisfied that VD ex H was a document created by the New South Wales Police Service for its own purposes. Drawing inferences from the document as a whole, I do not accept that it could emanate from the Department of Immigration: the document is to do with intersections with the criminal justice system, along with aspects of the appearance of the accused, and vehicles that may assist to locate him, or implicate him in offences. Nor do I accept that the document could have been created by the Department of Corrective Services: it has far too much detail about topics that are nothing to do with sentences imposed or served for that proposition to be correct.
To my mind, both in 2016 and in the 1970s, there was only one organisation in New South Wales that could or would have created such a document: the Police Service.
As for the evidence of Mr Andrews, it is quite true that he did not recognise the document as emanating from the police. But that is of little weight: he was giving evidence in 2016 about a document that is 40 years old. He has not served as a police officer for many years. Finally, his evidence was that he served as a senior constable, and there may have been all sorts of intelligence documents held by the New South Wales Police Service with which he was not familiar as a uniformed officer.
In short, I consider that VD ex H falls within s 69(1) of the Evidence Act, and I resolve the first dispute in favour of the Crown.
Second dispute - foundation of representation?
Turning to s 69(2) of the Evidence Act, the requisite representation at its lowest must have been made: on the basis of information indirectly supplied by a person who might reasonably be supposed to have had personal knowledge of the fact asserted. That concept is in turn informed by the definition contained in s 69(5) of the Evidence Act, which at its lowest is: a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact might reasonably be supposed to have been based on what the person saw, heard, or otherwise perceived.
The Crown Prosecutor submitted that I would infer on the balance of probabilities that the description of the vehicle, its registration, and the name of its owner are ultimately based on records that were maintained at the Roads and Maritime Services (RMS) (which no doubt had a different name in those days). Those records are not available, but it was said that I would be satisfied to the necessary standard that the representation came to be recorded in the document on the basis of information indirectly supplied from that source. Accordingly, it was said that the precondition contained in s 69(2) of the Evidence Act is established.
Defence counsel resisted that proposition. He submitted that the provenance of the entry is simply unknown, and one cannot draw inferences about its provenance on the balance of probabilities. If all that one is left with is speculation, one can hardly be satisfied that the representation is founded upon a "chain of information", as envisaged by the statute. And he submitted that, in the ultimate, an expectation of reliability is an important foundation of the business records exception to the rule against hearsay.
Separately, I understood his submission to be that, even assuming that the representation is indeed derived from information held by the RMS, the viewing of a document containing such information by a person, who constituted the first "link" in a "chain of information," would not suffice for the purposes of the section. That was said to be because the mere viewing or reading of a document of that kind would not constitute personal knowledge of the actual fact of the registration number of motor vehicle.
Turning to my determination of this dispute, consideration of VD ex H as a whole shows that it records the precise registration numbers of many vehicles said to be associated with the accused. And I have already expressed my satisfaction that the document is a record of the New South Wales Police.
I do not accept that one is not entitled to infer, on the balance of probabilities, that those recorded details, including the representation in dispute, are ultimately derived, by way of a chain of information, from records held at the RMS. One can also infer that those records were ultimately founded on the actual act of registration, whereby (in those days) a person would physically present registration papers at a motor registry, pay for the registration of the motor vehicle, and have the papers stamped by way of a receipt by a clerk who recorded that event in the records of the RMS.
In other words, I do not accept the thesis of the defence counsel that the "chain" failed to commence with personal knowledge.
Separately, and if I am wrong in that primary analysis, I do not accept that the legislation operates so constrainedly as not to permit evidence of a representation about the registration number of a motor vehicle that is ultimately founded upon records about that very fact held by the RMS.
It is true, of course, that one may query the correctness of the entry of the representation in the document: assuming that it was based on a chain of information, there may well have been a slip or typographical error along the way. But that is a question of weight, not a question of admissibility pursuant to s 69(2) and (5) of the Evidence Act.
In short, I am satisfied on the balance of probabilities that the representation was made, at the least, on the basis of information indirectly supplied by a person who might reasonably supposed to have had personal knowledge of the asserted fact that the accused was the owner of a motor vehicle with the asserted attributes. And I come to that view especially bearing in mind the breadth of the approach to personal knowledge permitted by s 69(5) of the Evidence Act.
In short, I resolve the second dispute in favour of the Crown.
Third dispute - connection with litigation or investigation?
Turning to s 69(3), it was agreed between the parties that the sub-section constitutes an "exception to the exception", as I have discussed previously with regard to my rejection of the tender of VD ex G. But there was a dispute with regard to VD ex H about who bears the onus with regard to that exception. In particular, defence counsel submitted that, as a matter of statutory interpretation, it should be the Crown who bears the onus of proving that a representation does not fall within s 69(3). That was said to be because the excluding facts (including the purpose contained in s 69(3)(a) of the Evidence Act) are very much within the power of the tendering party to prove, rather than in the power of the resisting party to disprove.
To be weighed against that submission is the fact that s 69 is an exception to the rule against hearsay. It is uncontroversial that the tendering party must establish that exception. But s 69(3) is a "carve out" from the section if certain circumstances are established. One might well expect that it would be incumbent upon the resisting part to establish (on the balance of probabilities) that "exception to the exception".
Although I prefer the latter proposition as a matter of structure, for abundant caution I have determined the question of the role of s 69(3) of the Evidence Act on the assumption that it is incumbent upon the Crown to prove that the tendered representation does not fall within the exception contained within the sub-section, rather than it being incumbent upon the accused to prove that it does.
In that regard, defence counsel submitted that it is noteworthy that VD ex M (of which VD ex H is an extract) was found in the box of exhibits that undoubtedly related to the investigation of the disappearance of the deceased. He submitted that that would play an important role in my determination of whether the tendered representation was prepared or obtained in contemplation of, or in connection with, an Australian proceeding, or whether it was made in connection with an investigation leading to a criminal proceeding (namely, the trial that is being conducted before me).
Turning to my determination of this discrete dispute, I am satisfied on the balance of probabilities that the representation in VD ex H is not captured by the exclusion in s 69(3) of the Evidence Act.
By way of explanation, a sharp contrast may be drawn between VD ex G and VD ex H. VD ex G shows all the hallmarks of a particular document, reciting particular representations, all for the purposes of a particular investigation, leading to a particular charge. In contrast, one can infer on the balance of probabilities that VD ex H is an intelligence report that the police maintained about the accused for their general information purposes. Although it speaks of particular asserted crimes of the accused (stealing petrol in 1972, committing rape in 1975), it cannot be linked to any particular investigation or litigation. Rather, both VD ex H and VD ex M, of which it was a part, are in the nature of overviews of the life of the accused and his physical characteristics, his offending, his vehicles, and his intersections with the police and the criminal justice system.
It is true that VD ex M was found in a box containing the exhibits relating to the investigation of the disappearance of the deceased. But I infer on the balance of probabilities that the document was placed there simply to assist anyone who came to re-investigate the matter, not because the document, when created, was connected with an investigation or a proceeding.
And in any event, it is important to remember that it is not the document that must be connected with an investigation or a proceeding to be excluded pursuant to s 69(3). Rather, it is the preparing or the obtaining or the making of the representation contained in the document that must possess that characteristic. There is nothing to suggest that the representation contained in the document that the accused was the owner of a particular motor vehicle with a particular registration was prepared or obtained or made with regard to a particular proceeding, or with regard to a particular investigation.
In short, I am satisfied that the representation that, as at a certain date, the accused owned a particular motor vehicle, was not related to an Australian proceeding, or a particular investigation, in the ways enumerated by s 69(3). It follows that the exclusion in s 69(3) of the Evidence Act does not operate to render the representation inadmissible.
Fourth dispute - probative/prejudicial evaluative judgment?
The final basis for rejection relied upon by defence counsel was the well-known evaluative judgement contained in s 137 of the Evidence Act. That section is as follows:
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.
It was said that the probative value of the evidence is rather low, in that one can hardly be confident that a document from 40 years ago, its provenance lacking in specificity, accurately records the details of a motor vehicle. And it was said that the prejudice accruing to the accused is high, in that there is simply "no one who is able to be cross-examined" about the representation.
Turning to my resolution of this final basis of resistance to tender, it is true that the accuracy of the entry is open to valid question, and the mere fact that the details were recorded by no means shows that they were indeed correct.
It is also true that, in the recent decision of R v Tai [2016] NSWCCA 207, the New South Wales Court of Criminal Appeal made it clear that, in certain circumstances, the exceptions to the prohibition on the receipt of hearsay evidence contained in the Evidence Act can operate so harshly towards a party (and especially an accused person) that exclusion pursuant to s 137 of the Evidence Act should occur.
Having said that, there is nothing to suggest that the representation was made capriciously or without due care; to the contrary, VD ex H as a whole bespeaks a careful noting of many aspects of the life of the accused.
As well as that, in accordance with the approach that commenced with R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 and was recently confirmed in IMM v The Queen (2016) 90 ALJR 529; [2016] HCA 14at [47], I consider that I should assess the probative value of the evidence at its highest: that is, on the assumption that the tribunal of fact in the trial will accept the representation as accurate. If that be so, the representation provides an important link between the accused and an allegation significant to the tendency that is the centre-piece of the Crown case for murder. Approaching the representation that way, its probative value is very high.
As for the danger of unfair prejudice, a sharp contrast can be drawn, on the one hand, between the facts of R v Tai (in which the hearsay representations sough to be led by the Crown were those of the alleged victim of the count on the indictment) and, on the other hand, the circumstances here (in which the hearsay representation pertains to a particular aspect of the life of the accused almost 40 years ago, albeit an important aspect).
To my mind, the true analogue of the facts of R v Tai in this case would be an attempt by the Crown to place the version of events of one of the tendency complainants before me, by way of simply tendering her statement, over objection of the defence counsel. That is a long way from the tender of this single representation contained in a business record.
As well as that, there is of course not the slightest onus on the accused at any stage of the trial. Nevertheless, in terms of assessing the prejudicial effect of the receipt of the representation, it is the case that the accused could perhaps adduce evidence, if not of the number plates of vehicles he owned many years ago, then of whether he owned a vehicle matching the description given at all. In other words, the accused is not forestalled, in theory or practicality, from disputing the accuracy of the representation. That plays a role (admittedly a small one) in my assessment of the prejudice of admitting the representation.
Finally, by way of a number of separate exceptions to the rule against hearsay, Parliament has made an explicit and longstanding decision to permit representations to be placed before tribunals of fact that cannot be the subject of cross-examination of the representor, and sometimes of the person who recorded the representation, by the opposing party. R v Tai shows that there are limits to that; nevertheless, I consider that that choice made by Parliament is entitled to due deference.
In all of the circumstances, although I accept that some forensic prejudice will accrue to the accused by the admission of the hearsay evidence pursuant to a mechanism created by Parliament, I do not consider that the danger of that prejudice outweighs the probative value of the representation.
In short, I reject the final basis of resistance to the tender of the representation contained in VD ex H.
Conclusion and orders
It is for the foregoing reasons that I ruled that the tender of the representation in exhibit G would be rejected, but that the representation in exhibit H would be admitted in the trial.
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Decision last updated: 04 November 2016