Jausnik v Nominal Defendant (No 3)
[2015] ACTSC 131
•15 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jausnik v Nominal Defendant (No 3) |
Citation: | [2015] ACTSC 131 |
Hearing Date: | 14 May 2015 |
DecisionDate: | 15 May 2015 |
Before: | Mossop AsJ |
Decision: | See [80] |
Category: | Ruling on admissibility of evidence |
Catchwords: | EVIDENCE – Admissibility of documents – business records – whether prepared or obtained for the purpose of or in contemplation of or in connection with proceedings – inadmissibility of documents on other grounds |
Legislation Cited: | Coroners Act 1997 (ACT) ss 4, 52 Crimes Act 1900 (ACT) s 311 Court Procedures Rules 2006 (ACT) rr 1202, 1203, 1404 |
Cases Cited: | Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Vitali v Stachnik [2001] NSWSC 303 |
Parties: | Nominal Defendant (Defendant) Michael Hannaford (First Third Party) State of New South Wales (Second Third Party) |
Representation: | Counsel Mr PJ Deakin QC and Ms LP McFee (Nominal Defendant) Mr GM Watson SC and Mr WS Reynolds (First Third Party) Mr J Sheller (Second Third Party) |
| Solicitors Minter Ellison (Nominal Defendant) Moray & Agnew (First Third Party) HWL Ebsworth (Second Third Party) | |
File Number(s): | SC291 of 2012 |
Introduction
In these proceedings the defendant has taken objection to a number of documents which have been tendered by the first third party. The second third party takes no objection to the admission of the documents. There are six documents in total which are the subject of the objections.
The six documents, which I will refer to by their number in the tender bundle, are as follows:
3. A report of Dr Lavinia Hallam dated 13 June 2010;
4. A report of Ian Whittall dated 7 May 2010;
7. A report of Dr Graham George dated 5 March 2010;
8. An AFP Professional Standards Investigation Report dated 3 August 2010;
9. A New South Wales Police Force Critical Incident Investigation Report dated 7 July 2010;
10. A statement of Timothy Lawrence Davis dated 1 March 2011 annexing a printout of some Facebook pages.
I will first deal with the issues that arise in relation to documents 3, 4 and 7. Each of these documents contains expert opinion. Dr Lavinia Hallam is a forensic pathologist, Ian Whittall is an officer of the ACT Government Analytical Laboratory, Dr Graham George is a psychiatrist working for ACT Mental Health. The objections taken to these reports as I understood were:
(a) The documents were expert reports within the meaning of rule 1202 of the Court Procedures Rules 2006 (ACT) and the requirements of rule 1203 were not complied with.
(b) The opinions stated in the reports do not comply with the requirements of section 79 of the Evidence Act 2011 (ACT) as articulated in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (‘Dasreef’).
(c) The representations in the documents were hearsay.
(d) The documents should not be admitted because their probative value was outweighed by their prejudicial effect.
Non-compliance with directions about objections
There is one preliminary matter relevant to the objections to each of these documents.
Incorporated in the pre-trial directions that I made on 4 March 2015 was Order 2 which provided:
No later than 1 May 2015 each party must serve on the other a list of objections to any expert reports that have been served by any other party. The list of objections must identify with precision which portion of the expert report is objected to and identify the basis for the objection with sufficient particularity to permit the other party to understand the legal and factual basis for the objection.
Exhibit VD1 discloses that the solicitor for the second third party served on the solicitor for the defendant the reports which are documents 3, 4 and 7. The terms of Exhibit VD1 would make it clear, in my view, to a reasonably competent solicitor practising in personal injury matters in the Territory that documents 3, 4 and 7 were each served on the basis that they were to be relied upon as expert reports.
The defendant corresponded with the second third party stating that each expert witness whose report was to be tendered was required for cross examination.
No notice was given by the defendant of any objections to the admissibility of documents 3, 4 and 7 which are now objected to notwithstanding the direction that I had made.
I note that the first third party is the party currently seeking to tender the documents and they were served by the second third party. However the second third party as I understand it supports the tender and adopts the submissions of the first third party.
I do not accept the submission of the defendant that the direction did not apply to the documents because they were not in fact expert reports either within the meaning of the rules or for the purposes of the Evidence Act 2011 (ACT). The letter serving the reports was sufficient to indicate that they were being relied upon as expert reports. It should, in my view, have been clear that if it was contended that the report was not admissible as an expert’s report for any reason then that was something that needed to be notified in the objections. In other words it should have been apparent that the order applied to purported expert reports as well as ultimately admissible expert reports. Further if there was any ambiguity in or disagreement over the effect of the direction that was made then that was a matter which should have been resolved by agreement between the parties or, failing agreement, by an application for further directions.
My conclusion therefore is that Order 2 made on 4 March 2015 was not complied with in relation to documents 3, 4 and 7.
However, the fact that the order was not complied with does not, except in one respect, compel the conclusion that the defendant is precluded from relying upon the objections which have now been taken. The reason for the making of the order that I did was because my experience is that efficient conduct of trials is assisted by parties knowing in advance with particularity the nature of the objections to expert material that are to be taken. The process of articulating with precision in accordance with the form of the order that I made compels an objecting party to consider and articulate the principled basis for the objection. The disclosure of that gives the other parties an opportunity to consider the objection, whether it is valid and whether there is any other step needed to be taken in the course of the trial to address the objection. It also gives responsible counsel the opportunity to discuss and attempt to resolve objections. That has the consequence that a trial will run more smoothly and the Court will have greater and better organised assistance in determining the validity of any objection. The unfortunate consequence of taking unnotified objections on the run is that, first the principled basis for the objection is often articulated in a less organised and structured manner and because of the absence of notice, so too is the response to the objection. That has the effect of making argument on the objections less focused and rulings on the objections more difficult. The manner in which the objections were identified and argued in the present case illustrates the value of compliance with directions such as that made in Order 2.
Because the directions were aimed at maintaining the efficient and fair conduct of the trial, in the present case, in the absence of any greater prejudice to the parties than some aggravation and waste of time, I would not consider that the failure to comply with the previous direction necessarily precludes the points now being taken. However, the position is different if, as a consequence of the failure to identify an objection, there is a prejudice to a party arising out of the manner in which it has conducted its case.
In one respect, that is an objection to the documents as hearsay, the taking of the objection at this point in the trial was argued to be significant and involve prejudice because, in order for the representations in the documents to be admissible, the relevant persons would need to be made available and give oral evidence. The defendant submitted that documents 3, 4 and 7 could not be admitted because they were hearsay. The first third party submitted that the defendant should not be permitted to raise this objection because had proper notice been given then the witnesses could have been arranged to give oral evidence and, in the absence of such notice, an adjournment would need to be sought in order that subpoenas be issued or other arrangements be made to permit the giving of oral evidence.
Rule 1404 deals with the powers of the Court in relation to a failure to comply with directions. Rule 1404(2) provides a range of orders that may be made to deal with non-compliance including making ‘another order dealing with the proceeding [as the court] considers appropriate’. In my view this would clearly permit an order that precluded a party from making an objection to the admission of evidence on a ground which it had been directed to notify in advance of the hearing but had not done so.
However I am not satisfied in the circumstances that the failure to notify the objection to the hearsay evidence in the documents should be met with an order under rule 1404 precluding reliance on the objection. That is because even though no notice of the objection to the hearsay nature of the representations in the documents was given notice was given of the requirement to make each expert relied upon available for cross examination. Given that the documents were served as expert reports the party proposing to tender the reports was clearly on notice that the authors were required to give evidence. In those circumstances, in my view, the second third party was on notice of a requirement that the authors of the reports should be made available and, in circumstances where they were not, then the defendant remains entitled to object to the admission of the reports on the grounds that they are hearsay. I should add that the first third party who in effect relies upon the notice given by the second third party cannot be in any better position than the second third party having not itself given any notice of the intention to rely upon the expert reports.
I will now deal with the objections to documents 3, 4 and 7.
Document 3
Document 3 is a report of Dr Lavinia Hallam, a pathologist working for the ACT pathology section of the Canberra Hospital. It is a report dated 13 June 2010 addressed to the Coroner. It reports the results of an autopsy undertaken on Justin Karl Williams, the driver of the uninsured motor vehicle. The document records particular factual matters observed by the pathologist including observations of particular tattoos on the body. It records the results of the internal examination during the autopsy. It records some results from microscopic examination. It records that a report of the ACT Government Analytical Laboratory disclosed an ethyl alcohol content of 0.154 g of alcohol per 100 ml of blood. The document recorded the pathologist’s opinion as to the cause of death and that there were no suspicious circumstances arising out of the post-mortem examination.
I will deal with each of the objections in turn.
(a) The document was an expert report within the meaning of rule 1202 and the requirements of rule 1203 were not complied with
Rule 1203 prevents the leading of oral evidence from an expert witness unless the expert has acknowledged in writing that the expert has read and agreed to be bound by the code of conduct: r 1203(2). Further, service of an expert report without such an acknowledgement is not valid service: r 1203(3).
In the present case the requirement that the expert witness agrees to be bound by the expert witness code of conduct does not apply because the definition of expert witness is limited to ‘an expert appointed or engaged’ to provide a report in the proceedings or to give expert evidence: r 1202(1). In the present case none of Dr Hallam, Mr Whittall or Dr George has been appointed or engaged by anyone to provide the report or give oral evidence.
Therefore the fact that Dr Hallam, Mr Whittall or Dr George has not agreed in writing to be bound by the code is not a basis for the exclusion of their evidence.
(b) The opinions stated in the report do not comply with the requirements of section 79 as articulated in Dasreef
In Dasreef at [37] the plurality said:
It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.
(footnotes omitted)
In my view this requirement is met by the report of Dr Hallam who made detailed observations during the autopsy. The report necessarily incorporates opinion embedded in the recordings of the findings on examination as well as an ultimate finding of the cause of death. In my view the report is within the scope of the example given in Dasreef, namely a specialist medical practitioner expressing her opinion with little explicit articulation or amplification. Therefore I am satisfied that the report is not excluded by the opinion rule.
(c) The representations in the document were hearsay
Given that Dr Hallam is not proposed to be called, the representations in the report are prima facie inadmissible hearsay under section 59. It was submitted that the document may be a business record and admissible under section 69 which provides:
69Exception—business records
(1) This section applies to a document that—
(a)either—
(i)is or forms part of a record belonging to or kept by an entity in the course of, or for the purposes of, a business; or
(ii)at any time was or formed part of the 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.
…
In my view subsections (1) and (2) are satisfied. The issue relates to subsection (3). The document on its face was addressed to the Coroner. The Coroner is, in effect, the Coroner’s Court: Coroners Act 1997 (ACT) s 4. The Coroner’s Court is an Australian court and hence proceedings of the Coroner’s Court are an Australian or overseas proceeding: Evidence Act 2011 (ACT) Dictionary part 1 definitions of ‘Australian or overseas proceeding’ and ‘Australian court’.
It was clearly in my view prepared for the Coroner in order to assist in providing evidence of the cause of death: see Coroners Act 1997 (ACT) part 4. The manner and cause of death is one of the matters upon which the Coroner is obliged to make a finding: s 52.
The report was clearly prepared ‘in connection with’ the proceedings of the Coroner’s Court. Thus, even though not excluded from section 69 because it was ‘prepared in an atmosphere or context which may cause it to be self-serving’ (see Vitali v Stachnik [2001] NSWSC 303 at [12]) it is caught by the words of the exclusion in section 69(3). Therefore it remains inadmissible under section 59.
(d) The document should not be admitted because its probative value was outweighed by its prejudicial effect
In the light of the conclusion above, it is not necessary to consider this ground of exclusion.
Document 4
Document 4 is the report dated 7 May 2010 of the ACT Government Analytical Laboratory referred to in document 3. That document is in a commonly seen form which records the samples tested, the method of testing and the result that was that there was 0.154 g of ethyl alcohol per 100 ml of blood. It is headed ‘Toxicology of Coronial Matter – Justin Karl Williams’ and contains a coronial reference number. Annexed to the report are supplementary information sheets which provide some information to assist laypersons in interpreting the results. Those annexures are identified by name in the body of the report. The first sheet is entitled ‘Supplementary Information Sheets – Intended Use’ and explains the limitations upon the use which can be given to the results and the other information on supplementary information sheets. The second is a ‘Supplementary Information Sheet’ on ‘Ethyl Alcohol’. This records some general information based on particular referenced scientific or medical publications and includes statements about the levels of ethyl alcohol which have been reported as involving toxic concentrations or lethal concentrations. The annexures appear to be standard forms attached wherever ethyl alcohol readings are recorded. The first annexure bears a date of 23 January 2010.
(a) The document was an expert report within the meaning of rule 1202 and the requirements of rule 1203 were not complied with
For the reasons given in relation to document 3 the admission of the document is not precluded by rule 1203.
(b) The opinions stated in the report do not comply with the requirements of section 79 as articulated in Dasreef v Hawchar
In my view, although even briefer than the report of Dr Hallam, section 79 is complied with. The report does not disclose the qualifications of the author. However it does disclose that he works at the ACT Government Analytical Laboratory, I infer in the ‘Forensic Chemistry and Toxicology’ section. The document records that that laboratory is accredited by the National Association of Testing Authorities, Australia. It also discloses the technique used to detect the quantity of ethyl alcohol namely gas chromatography with flame ionisation detection. On the balance of probabilities I find that the report is the product of Mr Whittall’s testing based upon his specialised knowledge and experience. The supplementary information which is annexed is general information, the scientific and medical journal references for which are identified. The adoption by Mr Whittall of those supplements as part of his report is sufficient to bring it within section 79.
Therefore in my view so far as the report contains opinion it is not excluded by section 76 because it is within section 79.
(c) The representations in the document were hearsay
The representations in the document are hearsay. The document was, having regard to its title and reference clearly produced in connection with the proceedings of the Coroner’s Court and hence, for the reasons given above in relation to document 3, the representations in the document are inadmissible hearsay.
(d) The document should not be admitted because its probative value was outweighed by its prejudicial effect
In the light of the conclusion above it is not necessary to deal with this objection. However I note that because the level of alcohol in Mr Williams’ blood was formally admitted by the defendant that was not a fact in issue. The only remaining possibly relevant material was that in the second supplementary information sheet. Having regard to its extreme generality its probative value in relation to any fact in issue would be low, it barely going beyond that of which judicial notice might be taken, but I would not have excluded it under section 135 because the prospects of the evidence being unfairly prejudicial (section 135(a)) or the Court being misled or confused (section 135(b)) were low. The only waste of time (section 135(c)) related to the argument over its admissibility not the use to which the admitted evidence would be likely to be put.
Document 7
Document 7 is a forensic mental health report assessing Mr Williams’ fitness to plead addressed to the Honourable Justice Refshauge at the Supreme Court of the Australian Capital Territory and dated 5 March 2010. It is a document in familiar form prepared by Dr Graham George a consultant psychiatrist at the Forensic Services section of ACT Mental Health. The document records the history that Dr George appears to have been given by Mr Williams. That history included that he had been involved in a motor vehicle accident in May 2009 in which he suffered a fractured skull and ‘[h]e believed he suffered a brain injury’. The report records ‘[s]ince his accident he said he has become more forgetful. He said his friends and others had indicated that his personality had changed to some degree. He struggled with short-term memory, according to his descriptions.’ The document then makes an assessment of the elements of fitness to plead in accordance with the test identified in section 311 of the Crimes Act 1900 (ACT). The summary and conclusion indicates ‘[h]e appears to have clinical signs of an organic mental disorder in that he has some problems with general knowledge, a short-term memory deficit, some problems in orientation and probably, significant problems in verbal language. This may be related to a head injury or may be of congenital origin. In general terms, therefore, he appears to suffer mental impairment. It is for these reasons that he should undergo neuropsychological assessment.’
(a) The document was an expert report within the meaning of rule 1202 and the requirements of rule 1203 were not complied with
For the reasons given in relation to document 3, this is not a bar to the admission of this document.
(b) The opinions stated in the report do not comply with the requirements of section 79 as articulated in Dasreef v Hawchar
In my view the report is within the scope of the example given in Dasreef, namely a specialist medical practitioner expressing his opinion on the basis of the results of examination which are set out. I am satisfied that the report is not excluded by the opinion rule because it meets the test in section 79.
(c) The representations in the document were hearsay
The document contains representations which are hearsay. The document was prepared in connection with Supreme Court proceedings. Once again although it was prepared at the request of the Court and not prepared in an atmosphere or context which make it self-serving, the words of section 69(3) mean that section 69 cannot apply.
The hearsay rule would not apply if the statements recorded as being made by Mr Williams to Dr George were admissions within section 81. I did not understand this submission to be put and, in any event, section 82 would prevent evidence of the admission being received unless Dr George gave evidence of it.
As a result the document is not admissible because the representations in it are hearsay.
(d) The document should not be admitted because its probative value was outweighed by its prejudicial effect
It is not necessary to deal with this submission. However the conclusion in the report could only be of limited probative value, having regard to the lack of evidence that links the opinion to the conduct engaged in by Mr Williams on 20 March 2010.
I now turn to deal with the remaining three documents.
Document 8
Document 8 is a document prepared by Federal Agent Nick Forbes identified as being from ‘PRS Investigations Canberra’ which I take to mean the professional standards section of the Australian Federal Police. The document is headed ‘Professional Standards Investigation Report’. It is quite clearly a document prepared for AFP internal processes in order to assess whether or not disciplinary or other internal processes were necessary having regard to the particular conduct issues relating to the plaintiff or the first third party. This is apparent from the first page of the document which outlines the circumstances under the heading ‘Information giving rise to the AFP Conduct Issue (Complaint)’. The first page also records the conduct issues as being in summary:
(a)that Mr Hannaford did not comply with part 19 rule 305 of the Australian Road Rules in breach of section 8.4 of the AFP Code of Conduct;
(b)that Mr Hannaford failed to comply with the ACT Policing Urgent Duty Driving and Pursuits Guideline when engaging in a police pursuit across the border;
(c)that Mr Jausnik failed to comply with that policy when engaging in that pursuit.
In each case the report proposes a finding that the breaches be ‘not established’. The document sets out the background facts and sets out the PRS process of investigation including the results of interviews with Mr Jausnik, Mr Hannaford and various other New South Wales police officers and other persons relevant to what occurred before or after the pursuit. It refers to the terms of the AFP National Guideline and the NSW Police Force Safe Driving Policy. It refers to the results of examinations of the radio systems available to Mr Hannaford and Mr Jausnik. It contains conclusions which involve expressions of opinion about various matters most importantly that ‘[t]he pursuit was justified in the circumstances and was conducted in an appropriate manner’.
Is the document admissible
The document contains substantial amounts of hearsay. The issue is whether or not the document may be admitted as a business record. The issue in turn is whether or not section 69(3)(a) precludes its admission as a business record.
I note that although the hearsay provisions refer to representations, the manner in which the objection was argued did not descend to deal with particular representations but instead dealt with the document as a whole. I have addressed the question in the manner that I have because of the way in which the objection was argued by the parties.
No evidence was led on the voir dire to explain the nature of the internal AFP processes that lead to a professional standards investigation of this nature. As a consequence it is the terms of the document itself which shed light on whether or not it was ‘prepared or obtained ... for or in contemplation of or in connection with, an Australian or overseas proceeding’. The only relevant Australian proceeding that was identified was the proceedings in the Coroner’s Court of the Australian Capital Territory.
In Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 at 238 Lindgren J having reviewed various English authorities said in relation to the meaning of ‘in contemplation’ in section 69(3):
41. The meanings of ‘in contemplation’ in s 7C(1) of the Evidence Act 1905 (Cth) and ‘anticipated’ in s 14B(3) of that Act were considered by Beazley J in Feltafield Pty Ltd v Heidelberg Graphic Equipment(1995) 56 FCR 481 (‘Feltafield’). Her Honour treated the two expressions as synonymous, reviewed the authorities, including Robinson v Stern, and concluded that the correct test was to ask whether there was a reasonable probability or likelihood of proceedings in the mind of the maker of the statement.
42.In Waterwell Shipping Inc v HIH Casualty and General Insurance Ltd (unreported, Sup Ct of NSW, 8 September 1997) (‘Waterwell’) Giles CJ Comm D, treated ‘in contemplation’ in s 69(3) as meaning ‘likely or reasonably probable’ (at 5-6). Importantly, his Honour also stated (at 4):
‘Depending upon the facts, the positions of the parties may be that, while they see it as possible that there could be legal proceedings once sufficient investigations have been made to enable them to form their respective views upon whether there is a valid claim, it is also possible that there will not be legal proceedings because when the facts are known the insured might not maintain its claim or the insurer might acknowledge the claim. The distant, unassessable, possibility of legal proceedings once the facts are known is not, in my view, contemplation of legal proceedings for the purposes of s 69(3).’
43. I agree with Beazley J in Feltafield that the test is subjective, and do not understand Giles CJ Comm D to have suggested otherwise in Waterwell. The question to be asked is whether the person who ‘prepared’ or ‘obtained’ the representation contained in the document, prepared or obtained it having in mind that legal proceedings were likely or reasonably probable, not merely one possibility.
These reasons were adopted by Besanko J sitting as a Judge of this Court in Lewincamp v ACP Magazines Limited [2008] ACTSC 69 at Annexure 2 [24] where his Honour said of the last quoted sentence above:
24. I respectfully agree. It is not enough for the defendant to show that proceedings were possible; it must show that they were reasonably probable or likely.
In the present case although the existence of the coronial investigation and subsequent hearings and decision of the Coroner’s Court have been referred to there is no precise evidence about the progress of that investigation. The material in evidence or sought to be tendered indicates:
(a)The accident occurred on 20 March 2010.
(b)On 22 March 2010 document 8 records the relationship between the various investigations undertaken into the accident as follows:
On 22 March a meeting was conducted with the ACT Collision Investigation and Reconstruction Team (CIRT) and PRS. The manner in which [the] incident would be investigated was discussed and what role each party would take responsibility for. It was established that CIRT would conduct the investigation into the crash and subsequent brief to the Coroner whilst PRS, in conjunction with the NSW Police Critical Incident Unit, would investigate the matters leading up to the point of impact.
On 5 May 2010 Joint Operational Agreement was drafted and signed between the NSW Police CIIT, AFP PRS and AFP CIRT.
(c)The post-mortem examination occurred on 23 March 2010.
(d)Document 8 which recorded the outcomes of the PRS investigation was dated 3 August 2010 and bears the name Nick Forbes, Federal Agent, PRS Investigations Canberra.
There is limited evidence as to the timing of the hearings for the purposes of the Coroner’s Court proceedings however document 9 does indicate that in June 2010 there was a hearing in the Coroner’s Court to determine a public interest immunity claim by the New South Wales Police Force in relation to the release of the Safe Driving Policy. The proceedings were then adjourned until 20 October 2010 when it was anticipated by the authors of document 9 that a hearing date would be set. The parties have during the course of these proceedings referred to the coronial proceedings having taken place in 2011.
It is further necessary to bear in mind the overall circumstances of the case namely a very significant catastrophic accident involving the deaths of four people in circumstances likely to generate a significant amount of public interest with the potential for significant public controversy and scrutiny both of the conduct of Mr Williams and of the police who pursued him.
In the light of this evidence, it is clear in my view that document 8 was produced in contemplation of or in connection with the Coroner’s Court proceedings. Notwithstanding the ‘staff-in-confidence’ references on the document and the conduct issues that were being investigated it is in my view clear on the balance of probabilities that Mr Forbes who prepared or obtained the representations contained in the document prepared or obtained them having in mind that legal proceedings were almost a certainty and at the very least likely or reasonably probable and not merely a possibility. I do not accept the submission made by Mr Reynolds for the first third party that the relevant test is whether or not the document was prepared for the dominant purpose of court proceedings. Rather the test is as I have set out from the authorities that I have referred to above. That conclusion is, in my view, also consistent with the policy behind section 69(3) articulated by Barrett J in Vitali v Stachnik [2001] NSWSC 303 at [12]. The document is therefore not admissible.
Even if the document was admissible as a business record, parts of the document would be rendered inadmissible insofar as they contained opinion because that would be excluded by section 76: see Lithgow City Council v Jackson (2011) 244 CLR 352 at 362-363 [19].
In the light of my conclusion above a blue pencil exercise so as to exclude the opinion is not necessary. Further, in the light of my conclusion above it is unnecessary to consider whether the document should be excluded on discretionary grounds pursuant to section 135.
Document 9
Document 9 is a document prepared by the New South Wales Police Force entitled ‘Critical Incident Investigation Report’. It is a document prepared by Gary Megay of the Far South Coast Local Area Command and Stephen Heffernan of the Far South Coast Local Area Command. There were various other investigators identified as participating in that investigation. The document contained a detailed executive summary of some six pages including some recommendations. The report is dated 7 July 2010 and makes reference to coronial proceedings which had not at that time concluded. The document contains detailed records of the investigation undertaken including summaries of statements prepared by various officers and other witnesses. It sets out the provisions of the AFP National Guidelines and includes a statement of findings and recommendations. The document is prima facie hearsay and the issue is whether or not it is a business record.
As with document 8 the objection was argued in relation to the document as a whole rather than by reference to individual representations in the document. For that reason I deal with it in that way. The document is substantially hearsay material. The question is whether it is a business record which in turn depends upon whether it is excluded from the concept of a business record by section 69(3)(a). In my view, the document is excluded by section 69(3)(a). Once again, no evidence apart from the terms of the document was given so as to shed light on the process which brought it into existence or the nature or purpose of critical incident investigation reports. As a consequence it is necessary to deal with the objection on the basis of what can be drawn from the content of the document. The position is, having regard to the terms of the document, even clearer than in relation to document 8. In contrast with document 8 the document is, on its face, not so clearly associated with internal discipline or review processes. The document itself records the terms of reference of Strike Force Stoker which produced the ‘Critical Incident Investigation Report’ as being:
To fully and adequately investigate the circumstances surrounding the multiple fatal collision on Canberra Ave, Fishwick [sic], ACT on 20/03/2010, including duty of care/actions of police prior to and following the collision, which resulted in the deaths of Scott Raymond Mills, Samantha Ford , Brodie Oppelaar and Justin Williams.
The document refers to a joint investigative protocol being developed between the Critical Incident Investigation Team, the AFP Critical Incident Review Unit and the AFP Professional Standards Unit. The document does make recommendations including what are apparently recommendations for the giving of instructions in relation to Constable Hannaford and Constable Jausnik in relation to compliance with the cross-border provisions of the Safe Driving Policy and the AFP National Guidelines. It also makes more general recommendations relevant to the management of the police service. As noted above the document refers to the progress of the coronial proceedings. In the body of the document there is a reference to AFP Coronial Liaison which refers to the release by the Coroner of documents to the investigation and the fact that the Coroner was present at the scene and met with the Critical Incident Investigation Team and was assured that a cooperative joint investigation was to be undertaken.
In the light of the content of the report and the evidence about when it was prepared in relation to the coronial process I am satisfied on the balance of probabilities that it was prepared for or in contemplation of the coronial proceedings which would involve examination of issues including the conduct of the two New South Wales police officers. As with document 8 the prospect of those proceedings was almost a certainty and at the very least probable or likely rather than being a mere possibility. As a result the document is not admissible as a business record.
Had the document not been excluded as hearsay those portions of it containing opinion would have been caught by section 76 for the same reasons I have given in relation to document 8.
In the light of my conclusion reached it is not necessary to consider whether or not the document should be excluded on discretionary grounds. Had it been necessary to consider this issue then consideration would need to be given to whether the whole or part of the document should be excluded as the prejudice potentially arising to the defendant arising from the admission of different parts of the document would vary.
Document 10
Document 10 is a statement prepared by a Federal Agent of the AFP who is a member of the AFP Internet Policing Team. He accessed a number of web pages relating to certain identified Facebook user names. The Facebook entries are then annexed.
The portions of the Facebook entries which are particularly relied upon are
(a)a comment posted by ‘Mully Williams’ on a page entitled ‘Fuck the Australian Federal Police’ below a picture of a damaged police vehicle in which he says ‘HOPE THE LIL DOGS ARE DEAD’;
(b)another entry on the same page: ‘the fuckers can neva catch me wen i behind da wheel FUCK COPPERS AND ALL SNICHS’.
Both comments were made on 10 March 2010, that is, relatively shortly prior to the accident on 20 March 2010.
The statement of Mr Davis is clearly hearsay and not admissible.
So far as the Facebook pages themselves are concerned, the hearsay rule applies to the representations in the document. Section 63 was not relied upon but would make the representations admissible if notice had been given. I was not told whether it had or had not.
The portions of the highlighted material quoted above fit the definition of an admission, namely a previous representation made by a person who is or becomes a party to a proceeding which is adverse to the person’s interest in the outcome of the proceedings. The defendant did not wish to advance the submission that an admission by Mr Williams was not admissible against the nominal defendant.
The effect of it being an admission would overcome the hearsay rule. However the quoted portions could be relevant only to establish Mr Williams’ state of mind. His state of mind including his attitude to police and his attitude to being caught by police when in a car could only be relevant to the issue of causation. That issue is whether or not Mr Williams would have ceased driving at the dangerous speed that he was driving had the pursuit been terminated at one of a variety of possible points where it might have been. Section 97 of the Evidence Act 2011 (ACT) provides:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict tendency evidence presented by another party.
.…
Section 100 permits dispensation with the notice requirements.
In my view the evidence sought to be tendered was evidence of the conduct of Mr Williams, namely postings on Facebook that will be sought to be admissible to prove that Mr Williams had either a tendency to act in a particular way namely unsafely attempt to escape from a police pursuit or to have a particular state of mind namely a strong dislike of and hostility to police.
Assuming that the notice requirements are dispensed with the question would become whether the evidence is of ‘significant probative value’.
The critical issue in the present case is not whether or not Mr Williams would have fled in response to a police pursuit. The question is whether or not he would have continued fleeing at the same speed even if he had observed that the police vehicle no longer had its lights and sirens on and was not pursuing him. Had the issue been whether or not he would have or did drive at speed from a police pursuit then in my view the evidence would be of significant probative value. I accept that the evidence would be of some probative value. However, in the light of the issue which is actually before me namely his continuation at speed in circumstances where the police pursuit had ceased I do not consider that the representations made about his attitude to police is of significant probative value in relation to the narrower fact in issue in the present case.
I do not accept the submissions made by the first and second third parties which were based on the evidence given by Professor Alpert at page 122 of the transcript. During cross examination the following appeared:
Let me tell you about something else which if you’d read the coronial report it would have revealed to you, that Mr Williams was before his accident a member of a Facebook group called “Fuck the AFP” or “Fuck the Australian Federal Police”. Does that ring a bell with you?---No, not really.
That he had made entries on their page saying - well, as you might imagine from the name of the group - how much he disliked the police. Does that ring a bell with you?---I - something about I was aware he was not a fan.
Not a fan and that he boasted in his Facebook entries on the inability of the police to be able to catch him in a car chase. Did you know that?---I don’t recall that, no, sir.
Right, well, if that was true, that’s a pretty important fact, isn’t it?---Absolutely and if the police knew that, they never should have chased him.
First, I do not consider the last answer given by Professor Alpert to amount to a concession that the Facebook entry was absolutely important for his opinion if it was a matter not in fact known to police.
Second, Professor Alpert’s evidence disavows making specific conclusions as to causation based on the individual psychology of Mr Williams.
Third, insofar as the third parties seek to rely upon the tendency evidence to support a finding that Mr Williams was in the 25% of persons the subject of the study relied upon by Professor Alpert, having regard to the terms of that study at page 254 of Exhibit 5 and the oral evidence given in response to cross examination by Mr Sheller I do not consider that the evidence would be of significant probative value. In particular, at page 144 of the transcript Professor Alpert did not accept that having a variety of reasons to flee police would make a person more likely to fall into the 25% that would not stop within the distances referred to in the study. Further, the Facebook material does not correspond with any of the categories of the reasons to flee identified in Professor Alpert’s report.
As a consequence the evidence, so far as it was identified as relevant during the course of submissions, is excluded by section 97.
In the light of my conclusion it is not necessary to determine whether this evidence should be excluded on discretionary grounds.
Conclusion
In summary, therefore, the tender of documents 3, 4, 7, 8, 9 and 10 of the first third party’s tender bundle is rejected.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 25 August 2015 |
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