Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris

Land and Environment Court (NSW)|2020-09-03|Before: Robson J

In proceedings 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Department of Planning, Industry and Environment (Prosecutor) Thomson Geer (Defendants) File Number(s): 2019/00265264; 2019/00265268; 2019/00265272; 2019/00265276; 2019/00265280; 2019/00265284; 2019/00265288; 2019/00265292; 2019/00265266; 2019/00265270; 2019/00265274; 2019/00265278; 2019/00265282; 2019/00265286; 2019/00265290; 2019/00265294; 2019/00265265; 2019/00265269; 2019/00265273; 2019/00265277; 2019/00265281; 2019/00265285; 2019/00265289; 2019/00265293; 2019/00265267; 2019/00265271; 2019/00265275; 2019/00265279; 2019/00265283; 2019/00265287; 2019/00265291; 2019/00265295 Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

Shortly before the Court rose yesterday, the prosecutor sought to tender documents produced by the NSW Rural Fire Service ('NSW RFS') about which evidence had been given by Michael William Brooks, District Manager with the NSW RFS - Namoi Gwydir District. The defendants (through Mr S Littlemore QC) objected to the tender of that evidence on the basis that the documents were not business records and therefore not admissible pursuant to the exception contained within s 69 of the Evidence Act 1995 (NSW) ('Evidence Act').
In his viva voce evidence, Mr Brooks deposed that his role at the NSW RFS is "to coordinate emergency fire services to the rural community", in which he coordinates 84 rural fire brigades. He has been with the NSW RFS for 18 years.
Mr Brooks described the process by which officers or volunteers working with the NSW RFS make and keep written records as follows: when a report of an incident is received (usually from members of the public who ring 000), that information is put through to duty officers (of which Mr Brooks is one) who respond by contacting and/or allocating the appropriate brigade resources. The NSW RFS maintains a "communications log" which records details of information so received (also referred to as a "handwritten log"). Every reported incident is recorded in the communications log and updated as the brigades respond. The communications log is maintained in the office or, on occasions (including outside of working hours), "at home".
In addition, duty officers use a system called the "ICON digital system" to record information that is received from brigade members usually over a two-way radio system or, on occasions, by mobile phone.
Mr Brooks was taken to a number of documents in the communications log which referred to various fire events including a proforma document styled "Situation Report" which he referred to in his evidence as "Sit Rep". He gave evidence describing the nature and type of data entries (handwritten or otherwise) within those documents; the manner in which the "Sit Reps" are created and how a further situation report would be created for a particular incident; and how information received (after it is initially recorded and entered by either a duty officer or the "NSW Fire and Rescue communications centre" who receives the emergency call) is thereafter electronically "approved", which meant that he or another duty officer had read the document, either entered or updated the information, and then approved it using a password.
Mr Brooks gave further evidence in relation to a document titled "Detail Report" which forms part of a record maintained within the ICON digital system and contains further information such as the appliances that responded to the reported fire event; regarding "progressive reports" which relate to ongoing incidents and are given discrete incident numbers; and he confirmed that the documents he had been taken to (which were paginated 218-279 in MFI-5) were records of the NSW RFS and they relate to specific reported fire events which had apparently been produced as the result of a specific search.
Mr Brooks was cross-examined in relation to the creation of these documents, in particular a number of the "Sit Reps" that had been "approved" electronically, or at least, not by himself or any other duty officer.

Submissions

Mr Littlemore submitted succinctly that the exception in s 69 of the Evidence Act did not apply because the entries were made or may have been made by people for example, with earphones on and with keyboards in front of them, and who did not have personal knowledge of the facts of the fire. As such, the telephonist receiving the emergency call simply records the information into the computer and their personal knowledge is only of the report of a fire and not the fact of the fire. In these circumstances s 69 of the Evidence Act is not satisfied because the entries do not have a determinable author.
The prosecutor submits that the evidence of Mr Brooks, along with what is apparent on the face of the NSW RFS documents themselves, would satisfy the Court that the material contains representations based upon information "directly or indirectly" supplied by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact.

Consideration

Although there has been limited judicial consideration of s 69(2) of the Evidence Act, in Lancaster v The Queen (2014) 44 VR 820; [2014] VSCA 333 ('Lancaster') at [27], records of notes kept of attendances by officers in their roles involving protection of children and the investigation of offences, although initially held by the trial judge to be inadmissible under s 69 of the Evidence Act, were held by the Victorian Court of Appeal to be admissible on the grounds, inter alia, that if the Parliament had intended to confine the business records exception to first or second-hand hearsay then the section would have been drafted in those terms; and secondly (and relevantly), the term "directly or indirectly" should be construed as one of wide import.
Although the Victorian Court of Appeal noted that there had not been any judicial consideration of the meaning of "directly or indirectly" in the context of s 69(2) of the Evidence Act up until that time, the words clearly embrace degrees of remoteness and it is sufficient that the representation (which led to the record) was made on the basis of information supplied by someone with a personal knowledge of the fact (at [27]). I consider this reasoning is compelling and applicable to the NSW RFS documents.
Further, the reasoning of the Victorian Court of Appeal in Lancaster was more recently adopted by Ward CJ in Eq in Mehmet v Carter [2020] NSWSC 413 at [284] where her Honour, having accepted the approach of the Victorian Court of Appeal, accepted that it is not necessary for the original supplier of the representation to be identified.
Having had the benefit of both hearing and now re-reading the transcript of Mr Brooks' evidence yesterday, I admit the material the subject of the objection. Exhibit A is supplemented by the addition of pages 218-279 (formally in MFI-5).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2020

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