Roads and Traffic Authority of New South Wales v Tetley

Supreme Court of NSW|2004-09-21|Before: Windeyer J, Mr P

CITATION : Roads and Traffic Authority of New South Wales v Tetley [2004] NSWSC 925 HEARING DATE(S) : 21 September 2004 JUDGMENT DATE : 8 October 2004 JURISDICTION: Common Law Division JUDGMENT OF : Windeyer J at 1 DECISION : Appeal upheld

CATCHWORDS : EVIDENCE - whether duplicates of driver logbooks and computer-generated Journey Report produced pursuant to Notice to Produce during RTA audit of defendant, admissible - where RTA prosecution depends on establishing falsity of duplicates through reference to Journey Report - where relevant documents ruled inadmissible by Magistrate on basis logbook duplicates part of Vehicle Movement Record (VMR) and therefore inadmissible in criminal proceedings (s 147(3)), and Journey Report inadmissible on basis of irrelevance - whether evidence supports Magistrate finding duplicates on removal from logbook became a part of the VMR, and therefore inadmissible under s 69 of Road Transport (Safety and Traffic Management Act - whether logbook duplicates admissible as business records under exception to hearsay rule pursuant s 69 Evidence Act - whether Journey Report relevant to issue in proceedings - whether Ocean Marine Mutual Insurance v Jetopay authority for the proposition that in considering questions of admissibility under s 147, a document may not be examined pursuant to s 183 if objection is taken to it - whether Journey Report part of VMR and inadmissible pursuant to s 147(3) as related to, or leading to, criminal proceeding - whether defendant/respondent under obligation to maintain VMR on vehicle registered outside NSW - whether computer-generated data in Journey Report constitutes in effect a VMR. - APPEALS - Appeal from decision of Magistrate rejecting evidence Evidence Act 1995, s49, s69, s146, s147, s183 Motor Traffic Regulations 1935, cl126N Road Transport (General) Act 1999 LEGISLATION CITED : Road Transport (Safety & Traffic Management) (Driver Fatigue) Regulations 1999, cl 49, 61,69, 79 Road Transport (Safety & Traffic Management) Act 1999, s59, s63 Road Transport (Vehicle Registration) Regulation 1998. Traffic Act 1909, s10O, Part 3A CASES CITED : Campbell v Hitchcock [2003] NSWIRComm 148 Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 PARTIES : Roads and Traffic Authority of New South Wales (Appellant) Anthony John Tetley (Respondent) FILE NUMBER(S) : SC 11740/04 COUNSEL : Mr T Lynch (Appellant) Mr B J Salmon QC with him Mr P A Walker (Respondent) SOLICITORS : Hunt & Hunts (Appellant) J S O'Connor Harris & Co (Respondent)

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Russell JUDICIAL OFFICER :

13 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11740/04 ROADS AND TRAFFIC AUTHORITY (NSW) v ANTHONY TETLEY JUDGMENT

1 This is an appeal from a decision by Magistrate Russell as to the admission into evidence of certain documents handed down on 14 May 2004. As a result of that decision the proceedings against the defendant were dismissed on 18 May 2004. The defendant is facing prosecution for 13 offences, each pertaining to alleged false entries he made in a "driving record" required to be kept under cl 69 of the Road Transport (Safety & Traffic Management) (Driver Fatigue) Regulations 1999 (RT(DF)R).

2 The plaintiff/appellant Roads and Traffic Authority (NSW) (RTA) seeks orders that the decision made by Magistrate Russell be set aside, and an order be made that the Local Court hear and determine each charge in the proceedings according to the law.

3 The defendant/respondent, Mr Tetley (Tetley), was the driver of an ACT-registered heavy motor vehicle, YBO-23L. He is and was at the relevant time, employed by Carkeet Transport Pty Ltd ("Carkeet"). That company is situated in Mitchell, ACT. The charges against the defendant relate to entries made by him in his driving logbook for the period from 3 March 2003 to 24 March 2003 ("the relevant period"). 4 The alleged offences came to the attention of the plaintiff during an audit of Carkeet in early 2003. The audit was conducted by an employee of the RTA, Mr Montgomery. Mr Montgomery is an inspector of vehicle regulation and has held that position for eleven years. 5 For the purpose of the audit, the RTA served a Notice to Produce, dated 7 April 2003, on the manager of Carkeet. The Notice directed Carkeet to produce certain information pertaining to vehicle registration YBO23L for the relevant period. The directions were made under various provisions of the Road Transport (General) Act 1999 (RT(G)A), the Road Transport (Safety & Traffic Management) Act 1999 (RT(S&TM)A), the Road Transport (Safety & Traffic Management) (Driver Fatigue) Regulation 1999 (RT(DF)R) and the Road Transport (Vehicle Registration) Regulation 1998.

6 The documents produced as a result of the Notice - and of relevance in these proceedings - included duplicates of entries made in the defendant's Log Book (the duplicates), and an 11-page document entitled "Carkeet Transport Journey Report" (Journey Report). The Journey Report on its face appears to record the location of the vehicle during the relevant period. It is alleged those locations are inconsistent with those recorded in the Duplicates".

7 The plaintiff relied on these documents to establish the falsity of the entries made by the defendant. On 14 May 2004, the Court ruled all of the duplicates and the Journey Report inadmissible. Without these documents the prosecution was unable to continue, and on 18 May 2004 the proceedings were dismissed. Put shortly, the duplicates were rejected as being part of a Vehicle Movement Report not admissible in criminal proceedings. The Journey Report was held inadmissible as not established to be relevant.

8 By cl 60 and cl 79 RT(DF)R a driver is required to create a logbook in duplicate. The duplicate is to be kept for at least 12 months by the employer (cl 61). The logbook - classified as a "driving record" under cl 47 - must be kept with the driver for a period of 28 days (cl 58). The purpose of the logbook is to record the activity of the driver, including work time, driving time and rest time (cl 49).

9 In the proceedings heard in the Local Court at Queanbeyan, counsel for the RTA contended that the duplicates were simply carbon copies of a "driving record" and were retained by the employer as such. Accordingly, they could be admitted under the "business record" exception to the hearsay rule - s69 of the Evidence Act 1995.

10 However, the learned Magistrate found that each of the duplicates was, or formed part of, the "manual data" of a "vehicle movement record" (VMR) as defined in s59 RT(S&TM)A. Pursuant to s 69 of that Act, and subject to certain exceptions not relevant here, a VMR is not admissible in evidence in any criminal proceedings. These sections are set out below: 59 Definitions

vehicle movement record , in relation to a journey made by a vehicle, means a record, in durable and graphic form, consisting of:

(b) either: (i) corresponding automatic data for the journey produced by a monitoring device, except where subparagraph (ii) applies, or (ii) where the automatic data is stored electronically in a monitoring device - a graphic representation, produced by an approved method, of that data.

(1) A vehicle movement record is not admissible in evidence in any criminal proceedings unless: (a) the proceedings are proceedings for: (i) an offence under section 67, or (ii) aiding, abetting, counselling or procuring the commission of an offence under that section, or (iii) a major offence, or

(2) Nothing in this section affects the admissibility in any civil proceedings of a vehicle movement record.

11 The VMR must be carried by the driver of the vehicle, from time to time (s63 RT(S&TM)A). Its purpose is to record the journeys made by the vehicle (rather than the driver) in the preceding 14 days.

12 The Journey Report is best understood as a computer-generated print-out derived from a Global Positioning System/vehicle monitoring information system maintained by Carkeet. There was some dispute as to how best to describe the system. Evidence given by Mrs Carkeet in the Local Court proceedings indicated that the print out is only used when there is a problem with one of the vehicles, or it is necessary to determine the location of a vehicle.

13 The admissibility of the Journey Report was pressed under ss69, 146 and 147 of the Evidence Act 1995 with s183 called in aid. I set out the relevant part of Her Honour's decision: Mr Hearnden, who appeared for the Roads & Traffic Authority, submits that the document is admissible, he says, as an exception to the hearsay rule under s 69 of the Evidence Act 1995 "whereas a document produced by a process machine or other device" under s 147 of the Evidence Act. I was referred to no authority on either section.

The defendant challenges the admissibility of the journey report in respect of s 69 of the Evidence Act on three bases: "1) that it does not contain a representation made or recorded in the document in the course of, or for the purposes of the business." As I understood that submission it was to the effect that if the document contains a representation that representation was not made in the course of business.

I pause to note that there was no evidence from which it could be determined whether the document in fact contained a previous representation at all, such as would be excluded by the operation of the hearsay rule. There was, for example, no evidence as to whether anyone entered any initial location into the system. This is not a matter the resolution of which comes within s 144 of the Evidence Act.

The second submission made by the defendant in relation to s 69 of the Evidence Act is that that section does not apply to a document such as this because the representation contained therein was made in circumstances to which subs (3) of s 69 applies. Section 69(3) concerns the time at which the representation under consideration was made as distinct from the time at which the document was produced. That submission, as I understand it, was to the effect that because there was no evidence as to how the document was produced, there was no evidence capable of establishing that any representation made in the document was not made at a time when criminal proceedings were in contemplation.

In view of the decision to which I have come in relation to the final submission made in this regard I do not proceed to consider those submissions further. It was submitted, as Mr Salmon for the defendant put it, that there is no evidence which would satisfy the Court that it reproduces reliable information. This objection, as I understood it, was the fundamental objection that the document was not relevant. Indeed, there was no evidence as to what the document was, what it was used for, or even in a rudimentary sense, how it was produced that could establish that it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. Section 183 of the Evidence Act allows recourse to the document itself for the purpose of drawing any reasonable inferences. The operation of that section was considered by the full Federal Court in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000], Federal Court of Australia 1463. The Court held that consistently with its terms s 183 merely enables the document to be examined and reasonable inferences to be drawn from such parts as are admissible or to which no objection has been taken. In the present case, as I understand it, objection has been taken to the document in its entirety apart from the date it bears.

IN MY VIEW IT HAS NOT BEEN ESTABLISHED ON THE BALANCE OF PROBABILITIES THAT THE DOCUMENT IS RELEVANT AND THEREFORE IT IS NOT ADMISSIBLE. That conclusion would make it unnecessary to consider further the admissibility of the document under s 69 or s 147 of the Evidence Act. Nevertheless, I do proceed to consider briefly submissions made in respect of s 147.

14 The Magistrate proceeded to consider the other arguments of the plaintiffs, concluding that: (i) there was sufficient evidence to establish that the contents of the Journey Report were documents produced "in connection with an investigation…leading to a criminal proceeding", and thus inadmissible under s69(3)(b) Evidence Act ; and

(ii) there was no, or no sufficient, evidence to hold that the outcome recorded in the Journey Report fulfilled s 146(2) or s 147(2) of the Act.

15 The RTA says: (i) that the duplicates: (a) do not form part of a VMR, (b) are part of the business records of Carkeet, and should have been admitted under s 69 of the Evidence Act . (ii) That the Journey Report is not the "automatic data" part of a VMR because: (a) the company was not required to keep a VMR for that vehicle, (b) it does not fulfil the requirements of a VMR as speed is not shown, (c) it was available for tracking of vehicles, not for compliance with the regulations. (iii) The report should have been admitted under s146 or s147 of the Evidence Act and perhaps under s69, although this last ground of admissibility was not really pressed. I will deal with each of these in turn.

16 The relevance of the duplicates was accepted by the Magistrate. However, Her Honour was of the opinion that - upon removal from the logbook - the duplicates became part of a VMR.

17 During cross-examination, Mrs Carkeet was questioned regarding the documents Carkeet had provided to the RTA. Mrs Carkeet indicated that the drivers handed the logbook duplicates to her at the end of each day. No suggestion was made by counsel that these were retained for the purpose of becoming part of a VMR. There is no evidence available to suggest that the duplicates were kept for any reason other than to comply with cl 61 of the RT(DF)R. There is no direct evidence Carkeet maintained a VMR.

18 I have mentioned the purpose of the logbook and of the VMR. Logbook entries relate to the driver of the vehicle. A VMR relates to the vehicle itself. There are differences regarding the information that is to be recorded in each (s59 of the RT(S&TM)A and cl 49 of the RT(DF)R). Different legislative instruments have created different requirements for each. I consider the learned Magistrate was in error in holding that the duplicates created to comply with the requirements of one Act became part of a record required by another Act. It follows that s 69 of the RT(S&TM)A does not prevent them being part of the evidence.

19 Counsel for the plaintiff argued that the duplicates were part of the business records of Carkeet and therefore, should have been admitted under the business record exception to the hearsay rule - s69 of the Evidence Act. It is evident from the oral testimony of Mrs Carkeet that the company kept the duplicates as part of its business records. The logbooks from which the duplicates derive their existence satisfy s69(1)(b). They contain previous representations recorded by drivers in the employ of Carkeet, that is, in the course of, and indeed, for the purposes of that business. The duplicates should have been admitted under s69.

20 I have already referred to the evidence given by Mrs Carkeet regarding the use made of the Journey Report data. She said it was used for the tracking of vehicles when there was a problem or it was necessary to determine the location of the vehicles. 21 I have set out the passage from the decision under appeal on this topic. As the Magistrate rightly stated, evidence must be relevant to a fact in issue. Tetley faces prosecution for making false entries in his logbook. On its face the Journey Report goes directly to proving the falsity of the duplicates. Insofar as the RTA relied on s69 of the Evidence Act for admissibility I consider the Magistrate correct. There are no representations made by a person in the document. Section 147 raises a difficult question. The Journey Record obtained from the GPS system would, at least under the aid of s183 appear to comply with s147(1) and (2). 22 It is I think clear that the learned Magistrate misunderstood the decision in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 at 151 where the following passage appears relating to s183: [20] … Consistently with its terms, it merely enables the document to be examined and reasonable inferences to be drawn from such parts of it as are admissible or to which no objection has been taken.

That passage needs to be read in the context of the particular case and the question of admissibility of a report tendered as the report of an expert without evidence of the qualifications of the author. It is not authority for the proposition that in considering questions of admissibility under s147 the document cannot be examined if objection is taken to it. It would be open to the Magistrate to consider the question of admissibility under s147 after examining the document and drawing reasonable inferences from it and the evidence of Mrs Carkeet. 23 The last conclusion does not however deal with the arguments raised by Senior Counsel for Tetley under s147(3)(b) nor the argument before me that the Journey Record was part of the VMR and not admissible. 24 So far as s147(3) is concerned counsel for Tetley argued that the Journey Record was produced in connection with an investigation leading to a prosecution. The records were produced pursuant to a notice to produce records dated 7 April 2003. They were produced to Mr Montgomery of the RTA. That notice among other things directed Carkeet: Under s66 of the Road Transport (Safety & Traffic Management) Act 1999 to produce (if applicable) vehicle movement records namely vehicle monitoring devices and/or tachograph records for vehicle registrations YBO231 from 3 March 2003 to 24 March 2003 . 25 There can, I think, be no doubt that, whether or not production of the printout of the Journey Record was called for under this part of the notice, the investigation or audit being conducted by Mr Montgomery did lead to the prosecution of Tetley. Nevertheless, the document to be considered in s147(3) is pursuant to s49 the computer database or the relevant part of it. This was not produced in connection with an investigation. It is possible to prove it by means of s48(1)(b)(ii)(d) and (e). Whether or not this has been done is for the Magistrate to decide. There is a discussion of the topic in Campbell v Hitchcock [2003] NSWIRComm 148 in paragraphs 57 and 113. 26 Insofar as the Magistrate held that the Journey Record was produced under demand made under s21 of the RT(G)A a study of Exhibit 1 shows that to be incorrect and a decision not open to the Magistrate.

27 It is next necessary to consider whether the Journey Report is part of the VMR. Senior Counsel for the defendant says that it is; he argues that as the journey reports were produced in obedience to that part of the notice I had set out in paragraph 24, this conclusion is required. Counsel for the RTA argued to the contrary. He submitted that as the defendant's vehicle was registered outside NSW there was no requirement for the creation and keeping of a VMR. On that basis - it was argued - the Journey Report could not have formed the "automatic data" of a VMR. It is necessary to proceed through a legislative maze to understand this.

28 Clause 17 of Schedule 2, RT(G)A provides: 17 Exemption under section 10O of repealed Act Any exemption given by the Authority under section 10O of the repealed Act in respect of all or any of the provisions of Part 3A of that Act that is in force immediately before the repeal of that Act is taken to be an exemption under section 68 of the STM Act in respect of the corresponding provisions of Division 2 of Part 5 of that Act and subject to the same conditions (if any). 29 Section 10O of the Traffic Act 1909 was in the same terms as s68 of the RT(S&TM)A as follows: 10O Exemptions

(1) The Authority may, in accordance with the regulations, exempt any person or vehicle or any class of persons or vehicles from the operation of all or any of the provisions of this Division.

(2) An exemption: (a) may be absolute or subject to conditions, and (b) if subject to conditions, has effect only while the conditions are observed.

30 By regulation under the Traffic Act 1909, taking effect on 1 January 1991, the Motor Traffic Regulations 1935 were amended by inserting cl 126N as follows: 126N (1) For the purposes of section 10O(1) of the Act, an exemption may be granted: (a) by order published in the Gazette or in a newspaper circulating in New South Wales; or (b) by notice in writing signed by the Chief Executive of the Authority, or by another person authorised in writing by the Authority, and served on the person who is, or whose vehicle is, to be exempted.

(2) An exemption granted in the manner provided by clause (1)(b) may in the same manner be rescinded. 31 Clause 4(h) of an order published in the Government Gazette on 2 November 1990 at page 9701, taking effect from 1 January 1991, exempted from Part 3A of the Traffic Act 1909: (h) A motor vehicle registered under the law in force in any place outside New South Wales (including a vehicle registered under the Interstate Road Transport Act 1985 of the Commonwealth, as in force from time to time).

32 It is clear that there was no obligation to create or keep a VMR in relation to vehicle registration YBO-23L. However, it does not follow that in no circumstance could a VMR be created in relation to an exempt vehicle.

33 Counsel for the RTA then contended that the Journey Report - in making no reference to the speed of the vehicle - failed to fulfil the requirements of the "automatic data" to be included in a VMR. The court was asked to conclude that as the requirements as set out in s 59 of the RT(S&TM)A below had not been met, the Journey Report was not a valid VMR and therefore could not have been ruled inadmissible under s 69 of that Act.

34 Section 59 provides: 59 Definitions (1) In this Division:

automatic data , in relation to a journey made by a motor vehicle, means recordings (made by mechanical or electronic means, or by both of those means, in an approved form, and to an approved degree of accuracy) of:

(a) the lengths of time for which the vehicle is driven, and for which it is standing, during the journey, and

(b) the speeds at which the vehicle is driven (measured continuously or at approved intervals) during the journey, and

35 The fact that the information in the Journey Report is not all that is required by s 59, added to the exemption from compliance, supports the contention of the plaintiff as does the evidence of Mrs Carkeet as to the purpose of the computer monitoring system. No decision was made by the learned Magistrate on this. It is not for this Court to decide the question on appeal unless the result is certain. The evidence adduced is not such as to require a conclusion the Journey Report was part of a VMR. 36 It follows from this that the decision of the Magistrate as to admissibility of the documents in question must be set aside and the matter remitted to the Magistrate to determine in accordance with law. Orders 37 Appeal allowed. 38 Order the matter be remitted to the Magistrate to be dealt with according to law. 39 Order the defendant to pay the plaintiff's costs of the summons. 40 Order the defendant have a certificate under the Suitors Fund Act.

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