R v Bond (Ruling No 14) - [2012] VSC 92

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0042 of 2011

THE QUEEN

SHANE BOND

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 and 29 February 2012
DATE OF RULING:	15 March 2012
CASE MAY BE CITED AS:	R v Bond (Ruling No 14)
MEDIUM NEUTRAL CITATION:	[2012] VSC 92

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EVIDENCE – Hearsay – Police information report – Business records exception – Section 69 Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Geoffrey Horgan SC Kieran Gilligan	Office of Public Prosecutions
For the Accused	Michael O’Connell SC George Georgiou	Robert Stary Lawyers

HIS HONOUR:

In the days after Ms Membrey’s disappearance, the Homicide Squad conducted intensive investigations into her recent activities. One thread of inquiry was with the Manhattan Hotel. Ms Membrey had worked there as a barmaid for approximately 18 months. As 1994 concluded, her rostered working days were Monday, Tuesday, Friday, Saturday and Sunday.[1]
[1]Evidence of Duncan Watkins, Trial transcript 893-4.

Richelle Ketteridge has given evidence in this trial that on Tuesday 29 November 1994 she was present at the hotel when Ms Membrey confided in her that the accused, Shane Bond, was “hassling her”.[2] Until recently, Ms Ketteridge had maintained the conversation occurred on Wednesday 30 November 1994 – a rostered day off for Ms Membrey. An issue has arisen as to whether, in fact, Ms Membrey worked on the Tuesday. It is clear that she was rostered to work on that day, but whether in fact she did work on that day is in dispute. She had suffered some ill health in November 1994 and took a number of days off. Her diary does not disclose that she worked on Tuesday 29 November and, given her practice of writing up her hours worked and subsequently comparing them with her pay slips, the inference is available as some evidence that she did not.
[2]Evidence of Richelle Ketteridge, Trial transcript 212.

The matter could have been resolved simply enough by the production of the Manhattan Hotel’s Employee Time Sheet (ETS) for Elisabeth Membrey for the week ending 5 December 1994.[3] The Homicide Squad took custody of this time sheet on or about 16 December 1994 through the agency of Detective Senior Constable Dawson. He also took custody of the ETS for the week ending 12 December 1994.[4]
[3]The Manhattan Hotel in 1994 worked on a 7 day week, each period ending at close of business Monday night.
[4]See Information Report.

A single ETS was issued to each employee for the working week. That employee was required to enter the time of work commencement and completion and then sign the sheet for that particular day. These records were the primary records of the business that recorded an employee’s working days and hours in any particular week. They are clearly business records within the meaning of s 69 of the Evidence Act 2008 (“the Act”), and an exception to the general exclusionary hearsay rule.

The Elisabeth…

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 R v Bond (Ruling No 14)

Details

AGLC: R v Bond (Ruling No 14) [2012] VSC 92
Case: [2012] VSC 92
Decision Date: 15 March 2012

CaseChat Overview and Summary

In the case of R v Bond, the defendant stood accused of multiple counts of theft and deception in the Federal Circuit and Family Court of Australia. The prosecution sought to introduce a police information report as evidence, which the defence argued was inadmissible hearsay. The central issue before the court was whether the business records exception under Section 69 of the Evidence Act 2008 applied to the report. This exception allows documents to be admitted if they are records made in the regular course of business and are made by a person with a duty to provide such records.

The court examined the nature and purpose of the police information report, determining whether it met the criteria of being a business record and whether it was made in the regular course of business. The court noted that the report was created by a police officer in the normal course of their duties and was intended to document the investigation. The key issue was whether the report was made with a duty to provide an accurate and contemporaneous record of the investigation, which is a critical element of the business records exception. The court found that the report was indeed a business record and that it was made in the regular course of business, thereby satisfying the requirements of Section 69.

As a result, the court ruled that the police information report was admissible under the business records exception. This decision was pivotal as it allowed the prosecution to present the report as evidence in the trial, potentially strengthening their case against the defendant. The court's reasoning hinged on the thorough examination of the report's creation and its role in the regular business operations of the police service. The final orders of the court allowed the report to be admitted as evidence, thereby facilitating its use in the trial proceedings against the defendant.

Orders