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:

1. 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.

1. 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

1. 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 4969OOOO are diary notes of Sharon Kerrison over a very long period, from 6 July 2007 to 12 February 2009.  Insofar as they are relevant, they appear to be a relatively cryptic record of her movements and activities in relation to Operation Diana.

1. I have read the impugned diary entries. Operation Diana has perhaps been most conveniently described by Senior Counsel for the defendants in opening as follows::

At that time both Ms Nixon and Assistant Commissioner Cornelius were informed that Operation Diana was an investigation into the leaking of sensitive operational material relevant to Operation Briars. Briars itself was a criminal investigation that was conducted jointly by OPI and Victoria Police and related to suspected police involvement in a murder.

They were informed that evidence collected in Operation Diana, including by use of telephone intercepts, suggested that Mr Ashby, Mr Linnell and Mr Mullett were involved in the leaking of sensitive operational information, and they were told that the OPI was planning to continue its investigation and would shortly conduct private examinations using compulsive powers. The question as to whether public examinations would then follow was raised but had not yet been determined.[1]

[1]Transcript of Proceedings, Mullett v Nixon & Ors (Supreme Court of Victoria, 2013/01520, Justice T Forrest, 10 May 2016), 98.

1. In very short compass, Ms Orr contends that, in the absence of Ms Kerrison or Mr Hardy, the diary entries are hearsay within the meaning of s 59 of the Evidence Act 2008 (‘the Act’) and captured by the exclusionary rule expressed within that section. Mr Panna argues that, while this may be the case, the diary entries are business records within the expansive meaning of s 69 of the Act, together with clause 1 of Part 2 of the Act's dictionary. Ms Orr responds by conceding that s 69 of the Act must be read expansively, but arguing that this interpretation also applies to s 69(3).

1. Thus, so the argument goes, accepting for the moment that the diary extracts are business records, the exception to the hearsay rule that would ordinarily result from that characterisation (see s 69(2)) does not apply because all of the relevant representations were prepared for the purpose of conducting, or in contemplation of, or in connection with, an Australian or overseas proceeding[2], and additionally were made in connection with an investigation relating or leading to a criminal proceeding.[3]

   [2]See Evidence Act 2008 s 69(3)(a).

   [3]See Evidence Act 2008 s 69(3)(b).

1. I accept that the impugned diary extracts are prima facie hearsay and will be caught by the s 59 rule unless some exception can be demonstrated. I also accept that the extracts are business records within the meaning of the Act.

1. The admissibility of these extracts will turn on whether s 69(3) can operate to exclude them from the operation of s 69(2). Put another way, the extracts will be caught by the hearsay rule and be rendered inadmissible if the impugned representations within those extracts were prepared or obtained for the purpose of conducting, or in contemplation of, or in connection with, an Australian or overseas proceeding, or were made in connection with an investigation relating or leading to a criminal proceeding. This is because, as I have already stated, if s 69(3) is engaged, s 69(2) will not operate to except the extracts from the s 59 hearsay rule.

1. In my view, the words of the statute as they apply to the impugned diary extracts are clear and unambiguous. It is apparent from the content of the extracts that they were made in connection with an investigation relating to, or leading to, a criminal proceeding. I see nothing particularly in the diary entries that indicates that the maker was recording self-serving information, or that the information recorded was inherently unreliable. Thus, the rationale behind s 69(3) and its predecessor, s 7D(3) of the Commonwealth Act, is not engaged in any real sense by the impugned material.

1. Notwithstanding this, as I have said, the words of s 69(3)(b) are unambiguous. They are broadly stated and they are of wide meaning.[4] I consider that it cannot sensibly be contended that the various activities recorded in the extracts, all of which relate to the pursuit by the respective authors of Operation Diana objects, are not representations made in connection with an investigation relating to or leading to a criminal proceeding.  As I have stated, Operation Diana was a criminal investigation with criminal proceedings as its object.

   [4]See R v Rondo [2001] NSWCA 540, [96] and R v Bond (Ruling No. 15) [2012] VSC 92.

1. Accordingly, I am not prepared to admit these diary entries.

Case log extracts

1. I have set out earlier in these reasons a brief description of these documents. It is clear enough that these documents contain previous representations by police officers and that they are sought to be tendered to prove the existence of facts apparently asserted therein. It is equally clear that the case log extracts are business records within the meaning of s 69.

1. In my view, it also cannot sensibly be contended that a log which records events within a criminal investigation (such as Operation Diana was) does not contain representations made in connection with an investigation relating or leading to criminal proceedings (as Operation Diana ultimately did).

1. Accordingly, I consider that s 69(3) is engaged, s 69(2) is thereby disengaged, and s 59 operates to render the case logs inadmissible as hearsay.