Mullett v Nixon (Ruling No. 2) - [2016] VSC 280

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 01520

PAUL MULLETT	Plaintiff
v
CHRISTINE NIXON & ORS	Defendants

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2016
DATE OF RULING:	17 May 2016
CASE MAY BE CITED AS:	Mullett v Nixon & Ors (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 280

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EVIDENCE – Admissibility – Hearsay – Business records – Police diary entries - Whether documents prepared or obtained for purpose of conducting or in contemplation or in connection with an Australian proceeding, or in connection with an investigation leading to a criminal proceeding - Evidence Act 2008 ss 59, 69.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Panna QC Mr R. Richter QC	Stephens Lawyers and Consultants
For the Defendant	Ms R. Orr QC Mr C. Caleo QC Mr L. Brown Mr S. Hay Mr D. McCredden	Victorian Government Solicitor’s Office

HIS HONOUR:

The plaintiff has sought to tender diary entries made by four police officers. I have admitted, on a provisional basis, the entries made by Messrs Walshe and Taylor, who are both parties to these proceedings.

The plaintiff also seeks to tender the redacted diary entries of Police Officers Kerrison and Hardy, together with a selection of what are described as ‘case log extracts to which Officer Kerrison has added material’. The defendants argue that these documents are inadmissible as hearsay. Neither Police Officer Kerrison nor Hardy has been called by the plaintiff to give evidence.

Diary entries

It is undisputed that the diary entries are essentially hearsay in nature in that they are, so far as they are relevant, previous representations made by either Ms Kerrison or Mr Hardy that are sought to be relied upon to prove the facts apparently asserted therein. I shall set out briefly their import:

(a) Court book pp. 2957-2968 is styled ‘Compass case log extract for Operation Diana, chronological record of activities concerning Operation Diana, including the person of interest, Paul Mullett, and various meetings’;

(b) Court book pp. 6185-6188 (reproduced in a confidential folder) is styled ‘Case Log Report’, and it apparently records activity largely by Ms Kerrison on the Operation Diana file. It appears to record meetings and personalities present relevant to and at about the time Mr Mullett was being charged;

(c) Court book pp. 6183-6184 are heavily redacted diary entries that appear to be made by Sharon Kerrison. The two surviving entries appear to record:

(i) a meeting with Wayne Taylor relating to brief preparation on 15 July 2008; and

(ii) a meeting with Detective Walshe and legal, brief outline of charges.

(d) Court book pp. 4969QQQQ – 4969RRRR is a diary extract that appears to be a record of Sharon Kerrison’s attendance in and out of the office in mid-March 2008, apparently in relation to Operation Diana. The entries in this extract, are in my view, sufficiently cryptic as to be unclear;

(e) Court book pp. 4969A to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mullett v Nixon (Ruling No. 2)

Details

AGLC: Mullett v Nixon (Ruling No. 2) [2016] VSC 280
Case: [2016] VSC 280
Decision Date: 17 May 2016

CaseChat Overview and Summary

In Mullett v Nixon (Ruling No. 2), the dispute before the court was the admissibility of certain police diary entries as evidence. The case was heard by the Supreme Court of Queensland. The respondent sought to admit the diary entries as business records under the hearsay exception in section 69 of the Evidence Act 2008. The applicant contested the admissibility of these entries, arguing that they did not fall within the exception for business records.

The court was required to determine whether the police diary entries could be admitted as business records under section 69 of the Evidence Act 2008. The key issue was whether the entries were prepared or obtained for the purpose of conducting or in contemplation or in connection with an Australian proceeding, or in connection with an investigation leading to a criminal proceeding, as required by section 59 of the Evidence Act 2008. The court had to examine the purpose for which the diary entries were created and whether they met the criteria for admissibility as business records.

The court considered the nature and purpose of the diary entries, examining whether they were created in the regular course of business and whether they were contemporaneous with the events they recorded. The court concluded that the diary entries were not prepared or obtained for the purpose of conducting or in contemplation or in connection with an Australian proceeding or an investigation leading to a criminal proceeding. As a result, the entries did not meet the criteria for admissibility as business records under section 69 of the Evidence Act 2008. The court ruled that the diary entries were inadmissible as evidence.

The court did not make any final orders in this ruling, as it was limited to determining the admissibility of the diary entries. The decision was significant in clarifying the criteria for admissibility of business records under the Evidence Act 2008.

Orders