The Registrar of the Supreme Court of Queensland v Wood [2024] QSC 21

(a) she was not present in Burns J's courtroom on 26 July 2023;

(b) she was not present in Burns J's courtroom on 2 August 2023; and

(c) she had not been in the registry and received documents that Mr Wood had submitted.

• [7] Mr Wood objected to the evidence in Ms Steel's affidavit being received on the basis that s 92 of the Evidence Act 1977 had not been met because Ms Steel did not have personal knowledge of the matters dealt with by the statement. Mr Wood also appears to object to the receipt of Ms Steel's evidence on the basis that as Justice Burns is not being called as a witness in the proceeding then s 92(1) has not been satisfied.
• [8] The applicant does not rely upon s 92 but I will explain why it is not relevant to the admissibility of Ms Steel's affidavit.
• [9] Section 92 provides:

"Admissibility of documentary evidence as to facts in issue

(1) In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if -

(a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or

(b) the document is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.

(2) The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where -

(a) the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness; or

(b) the maker or supplier is out of the State and it is not reasonably practicable to secure the attendance of the maker or supplier; or

(c) the maker or supplier can not with reasonable diligence be found or identified; or

(d) it can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; or

(e) no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness; or

(f) at any stage of the proceeding it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling the maker or supplier as a witness.

(3) The court may act on hearsay evidence for the purpose of deciding any of the matters mentioned in subsection (2)(a), (b), (c), (d) or (f).

(4) For the purposes of this part, a statement contained in a document is made by a person if -

(a) it was written, made, dictated or otherwise produced by the person; or

(b) it was recorded with the person's knowledge; or

(c) it was recorded in the course of and ancillary to a proceeding; or

(d) it was recognised by the person as the person's statement by signing, initialling or otherwise in writing."

• [10] The purpose of exhibiting the transcript and the audio recordings is not to prove that what was said and recorded was true, but merely that it was said. Section 92 is a statutory exception to the hearsay rule. But, the hearsay rule has always permitted evidence of this kind because it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. That is what the applicant seeks to do by her affidavit.
• [11] There are other equally strong grounds for rejecting Mr Wood's submission. Ms Steele's affidavit contains a certificate under s 95 of the Evidence Act. That section provides:

"Admissibility of statements in documents or things produced by processes or devices

(1) In a proceeding where direct oral evidence of a fact would be admissible, a statement contained in a document or thing produced wholly or partly by a device or process and tending to establish that fact is, subject to this part, admissible as evidence of that fact.

(2) A court may presume the process or device produced the document or thing containing the statement if the court considers an inference can reasonably be made that the process or device, if properly used, produces a document or thing of that kind.

(3) In a proceeding, a certificate purporting to be signed by a responsible person for the process or device and stating any of the following matters is evidence of the matter for the purpose of subsection (2) -

(a) that the document or thing was produced wholly or partly by the process or device;

(b) that the document or thing was produced wholly or partly in a particular way by the process or device;

(c) that, if properly used, the process or device produces documents or things of a particular kind;

(d) any particulars relevant to a matter mentioned in paragraph (a), (b) or (c).

(4) A person who signs a certificate mentioned in subsection (3) commits an offence if -

(a) a matter is stated in the certificate that the person knows is false or ought reasonably to know is false; and

(b) the statement of the matter is material in the proceeding.

Maximum penalty - 20 penalty units or 1 year's imprisonment.

(5) If a party (the relying party) to a proceeding intends to rely on the certificate, the party must give a copy of the certificate to each other party to the proceeding -

(a) at least 10 business days before the hearing day; or

(b) if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a) - by a later date allowed by the court.

(6) If a party to the proceeding, other than the relying party, intends to challenge a matter stated in the certificate, the party must give the relying party notice in writing of the matter to be challenged -

(a) at least 3 business days before the hearing day; or

(b) if, in the particular circumstances, the court considers it just to shorten the period mentioned in paragraph (a) - by a later date allowed by the court.

hearing day means the day fixed for the start of the hearing of the proceeding.

responsible person, for a process or device that produced a document or thing, means a person responsible, at or about the time the process or device produced the document or thing, for -

(a) the operation of the process or device; or

(b) the management of activities for which the document or thing was produced by the process or device."

• [12] The fact for which the certificate is evidence is the fact that the audio recordings were produced from information supplied by the computer system in the ordinary course of activity.
• [13] In addition to that provision, s 10 of the Recording of Evidence Act 1962 (REA) provides:

(1) A record under this Act of a legal proceeding is to be received by a court or judicial person as evidence of anything recorded in the record.

(2) A document purporting to be a transcription of a record under this Act, produced by a recorder, is to be received by a court or judicial person as evidence of anything recorded in the document, except to the extent the document is shown not to be an accurate transcription of the record."

• [14] The term "record under this Act" is defined in s 4 of the REA as follows:

(a) in relation to a legal proceeding taking place in a courtroom - means the evidence (if any) and other matter (if any) recorded under section 5 and includes, if the record on a master recording is a digital recording, a replication of the record onto a separate data storage medium; or

(b) if no legal proceeding is taking place in a courtroom - means matter recorded in an out-of-session recording."

• [15] The term "legal proceeding" is defined in s 4 of the REA as follows:

"legal proceeding includes any proceeding (whether civil or criminal) in or before any court, any proceeding before justices, and any proceeding before any court or person (including any inquiry, arbitration heard by the industrial commission, or examination) in which evidence is or may be given, as well as any part of any legal proceeding."

• [16] In the light of those provisions, and the certificate referred to above, I'm satisfied that the two audio recordings are evidence of what was recorded on those particular days and that the documents in Exhibits G, H, I, P, and Q are transcriptions of the record under the REA and are further evidence of what was recorded.
• [17] The other documents exhibited to Ms Steel's affidavit which were read by Mr Nicolson are documents which were in the possession of the registry and contained in two separate court files. The affidavit proves that they are documents which were on those files. It does not purport to be proof of any statements made in those documents.