R v Bond

2 Richelle Ketteridge has given evidence in this trial that on Tuesday 29 November 1994 she was present at the hotel when Ms Membrey confided in her that the accused, Shane Bond, was "hassling her".[2] Until recently, Ms Ketteridge had maintained the conversation occurred on Wednesday 30 November 1994 - a rostered day off for Ms Membrey. An issue has arisen as to whether, in fact, Ms Membrey worked on the Tuesday. It is clear that she was rostered to work on that day, but whether in fact she did work on that day is in dispute. She had suffered some ill health in November 1994 and took a number of days off. Her diary does not disclose that she worked on Tuesday 29 November and, given her practice of writing up her hours worked and subsequently comparing them with her pay slips, the inference is available as some evidence that she did not.

3 The matter could have been resolved simply enough by the production of the Manhattan Hotel's Employee Time Sheet (ETS) for Elisabeth Membrey for the week ending 5 December 1994.[3] The Homicide Squad took custody of this time sheet on or about 16 December 1994 through the agency of Detective Senior Constable Dawson. He also took custody of the ETS for the week ending 12 December 1994.[4]

4 A single ETS was issued to each employee for the working week. That employee was required to enter the time of work commencement and completion and then sign the sheet for that particular day. These records were the primary records of the business that recorded an employee's working days and hours in any particular week. They are clearly business records within the meaning of s 69 of the Evidence Act 2008 ("the Act"), and an exception to the general exclusionary hearsay rule.

5 The Elisabeth Membrey ETS for the week ending 5 December 1994 has gone missing. Detective Senior Constable Dawson attached it and the subsequent week's ETS to an Information Report and submitted it to the investigation. The Information Report and the later ETS were produced to this Court on a voir dire on 28 February 2012. It is apparent from a physical examination of the Information Report and the remaining ETS, which is stapled to the Information Report, that some other document was also part of that stapling exercise but has been either deliberately or accidently removed from the two other stapled documents. A small butt of torn paper at the site of the staples is all that seems to remain of that document. Both Detective Senior Constable Dawson in evidence, and the terms of the Information Report itself, assert that the relevant ETS was attached to the Information Report.

6 This preamble is necessary because of the contents of the Information Report itself. It purports, on its face, to summarise the effect of the missing ETS:

The attached Manhattan Hotel Employee Time Sheets for Elisabeth Membrey indicate that for the week ending 5 December 1994 Elisabeth Membrey worked as follows:-

Friday 2/12/94 4.00pm to 1.00am

Saturday 3/12/94 1.00pm to 7.45pm

Sunday 4/12/94 2.00pm to 9.00pm

Monday 5/12/94 10.00am to 6.00pm

7 Thus, the Information Report generated by a Homicide Squad detective seems to set out the effect of the missing ETS. Mr O'Connell SC for the accused seeks to tender this Information Report as some evidence supporting the proposition that Elisabeth Membrey did not work on Tuesday 29 November 1994. Mr Horgan SC for the prosecution opposes this tender on the basis that what is recorded in the Information Report is hearsay and not amenable to any of the exceptions contained in s 69 of the Act.

8 I should add that Detective Sergeant Dawson (as he now is) gave evidence on a voir dire on this issue. He maintained that, after 17 years, he recalled preparing this Information Report and did not include in it earlier days in the week ending 5 December 1994 that Elisabeth Membrey had worked. Thus his evidence was that the Information Report was not what it appeared - and in particular, despite its assertion to the contrary, in fact the Information Report was not a complete record of Ms Membrey's working week.

9 Section 69 of the Act creates an exception to the hearsay rule set out in s 59. Section 69 relevantly provides:

(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.

10 The business records exemption to the hearsay rule enables the admission of both firsthand and more remote hearsay. The hearsay rule is waived if a document contains a representation which satisfies the section.[5]

11 Mr O'Connell initially submitted that there were four avenues to admission for the Information Report. Two related to ss 48 and 49 of the Act. I indicated in discussion that I regarded those provisions, contained in Part 2.2 of the Act, as machinery provisions which address methods of adducing documentary evidence rather than addressing the admissibility of the contents of documents. I adhere to this view (see R v Hall[6]). I did not understand Mr O'Connell to press those Part 2.2 submissions.

12 An examination of whether s 69 is satisfied necessarily commences with an identification of the representation relied upon, and it is here that the real area of dispute lies between the parties. Mr O'Connell submitted that the representation relied upon is that made by Ms Membrey - namely that for the week ended 5 December 1994 she worked on certain days. This representation, he submitted, was originally made in the ETS and, on the face of it, reproduced in the Information Report.

13 Mr Horgan submitted that having regard to Detective Dawson's evidence, the representation contained in the Information Report is different to that made by Ms Membrey. In short, he submitted that one is the representation of Ms Membrey, the other the representation of Detective Dawson.

14 I take the view that the words of the Information Report:

The attached Manhattan Hotel Employee Time Sheets for Elisabeth Membrey indicate that for the week ending the 5th of December Elisabeth Membrey worked as follows...

are unambiguous and I find that the days and times recorded thereafter were intended by the author to encapsulate the whole effect of the ETS. I accept that Mr Dawson gave his evidence in complete good faith. I am of the view, however, that what is recorded in that Information Report in clear and unambiguous language provides a more reliable vehicle for me to act upon than sketchy recollections unassisted by any notes or other documentation of a clerical event 17 years ago.

15 On this question of fact, I find, on balance, that the representation was made by Ms Membrey, not Mr Dawson.

16 It follows from this finding that I accede to Mr O'Connell's submission. I make the following findings as to the representation:

(a) It is in a document i.e. the Information Report;

(b) The document is part of the records kept by a business - namely the police. The definition of business (Dictionary Clause 1 of Part 2) in the Act is expansive and it includes the business of government, the courts and the police;[7]

(c) The representation is hearsay in the sense that at its current location in the Information Report that document contains a previous representation being led to prove the existence of a fact that the maker of the representation, Elisabeth Membrey, intended to assert by the representation;

(d) The representation was recorded in Information Report for the purpose of the business of the police; and

(e) The representation was made by Ms Membrey, whom it may reasonably be supposed had personal knowledge of the asserted fact - namely the days she worked during the relevant week.

17 I am of the view therefore that the Information Report is a document to which s 69 of the Act applies[8] and that for the reasons enunciated above, the exception to the hearsay rule set out in s 69(2) is made out.

18 Section 69(3) provides as follows:

(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.

19 I have no doubt that the Information Report was made in conjunction with a criminal investigation but, as I hope is clear from my reasons, I consider the representation was not. It was made in connection with the business of the Manhattan Hotel. Accordingly, I do not consider the qualification to the s 69(2) exception contained in s 69(3) has any application. That qualification applies to representations, not documents, and was designed to prevent the introduction of hearsay material "prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings."[9]

20 I propose to admit the document in its entirety. Whilst only a part of the document (albeit the major part) relates to the relevant representation, it is given context by the balance of the document which is admissible for that non-hearsay purpose.

21 It is not necessary to consider Mr O'Connell's alternative submission, which was founded in s 69(4)

[1] Evidence of Duncan Watkins, Trial transcript 893-4.

[2] Evidence of Richelle Ketteridge, Trial transcript 212.

[3] The Manhattan Hotel in 1994 worked on a 7 day week, each period ending at close of business Monday night.

[5] The New Law of Evidence, Anderson , Williams and Clegg ,pg 266.

[6] [2001] NSWSC 827 per Greg James J.

[7] See R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562.

[8] See s 69(1) of the Act.

[9] Vitali v Stachnik [2001] NSWSC 303 per Barrett J.