R v Connors
[2016] ACTSC 137
•20 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Connors |
Citation: | [2016] ACTSC 137 |
Hearing Date: | 20 June 2016 |
DecisionDate: | 20 June 2016 |
Reasons Date: | 28 June 2016 |
Before: | Refshauge J |
Decision: | It is directed that the evidence of telecommunication records of the mobile phones set out in the Application in Proceedings dated 17 June 2016 be presented in the summary form as in the document annexed to the affidavit of Vienna Conliffe made 17 June 2016. |
Catchwords: | EVIDENCE – Jurisdiction, practice and procedure – intercepted calls and messages – telecommunications records – summary of evidence – evidence in documentary form – table summary – summary of evidence – no exercise of judgment or expression of opinion on material |
Legislation Cited: | Evidence Act 2011 (ACT), ss 28, 29, 31, 33, 34, 50, 50(2)(a), 192, 192(2) Federal Rules of Evidence (USA), Rule 1006 |
Cases Cited: | Australian Competition and Consumer Commission v World Netsafe [2002] FCA 519 Beattie v Osman (No 3) [2009] NSWSC 824 |
Texts Cited: | S Odgers, Uniform Evidence Law (Thomson Reuters Lawbook Co, 11th ed, 2014) Australian Law Reform Commission, NSW Law Reform Commission, Victoria Law Reform Commission, Uniform Evidence Law – Report, ALRC Report No 102 (2005) |
Parties: | The Queen (Crown) Andrew John Connors (Defendant) |
Representation: | Counsel Mr T Hickey and Mr S Drumgold (Crown) Mr W Terracini SC and Mr D Berents (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Defendant) | |
File Number: | SCC 220 of 2015 |
REFSHAUGE J:
Andrew John Connors, the accused, has been charged with trafficking in a large commercial quantity of methylamphetamine. He has pleaded not guilty and, accordingly, a trial is to be held to determine whether he is guilty of the offence charged or not.
Part of the evidence that the Crown proposes to lead at the trial consists of a large number of electronic communications by way of lawfully intercepted telephone calls and SMS messages from telephone numbers associated with Mr Connors and persons whom the Crown alleges were also involved in the offending behaviour.
The evidence has been reduced to documentary form, but is, it is suggested by the Crown, not in a form that would make it possible to examine conveniently because of the volume and complexity of the material.
Thus, the Crown says that:
(a)The telephone communication records relating to certain mobile phones are not contained within one document, making examination, analysis and understanding of telephone calls difficult.
(b)The telephone communication records relating to services to those mobile phones are voluminous, further adding complexity to the examination, analysis and understanding of the telephone calls.
(c)The volume of relevant telephone communications records combined with the number of different phone numbers does not allow for easy comparison or understanding of timing of calls made or messages sent.
(d)Different telephone communication records duplicate call records, where as the summary table removes obvious duplications.
Section 50 of the Evidence Act 2011 (ACT) makes provision for evidence to be adduced by production of a summary. The section provides as follows:
50 Proof of voluminous or complex documents
(1) The court may, on the application of a party, direct that the party may present evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
(2) The court may only make a direction under subsection (1) if the party seeking to present the evidence in the form of a summary has—
(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and
(b) given each other party a reasonable opportunity to examine or copy the documents in question.
(3) The opinion rule does not apply to evidence presented in accordance with a direction under this section.
This section, so it is stated by S Odgers, Uniform Evidence Law (Thomson Reuters Lawbook Co, 11th ed, 2014) at 190; [1.2.550], was not based on any recommendation of the Australian Law Reform Commission (though more recently, it has described it’s “usefulness ... [as] already widely acknowledged”: Australian Law Reform Commission, NSW Law Reform Commission, Victoria Law Reform Commission, Uniform Evidence Law – Report, ALRC Report No 102 (2005) at 169; [6.13]). Mr Odgers states that it was based on Rule 1006 of the United States Federal Rules of Evidence (USA).
A similar provision was, however, available at common law, though in the context of the admission of secondary evidence. Thus, it was held by Way CJ in R v Tucker [1907] SALR 30, after a careful analysis of the old English authorities, that schedules verified by testimony could be admitted to assist a jury to comprehend otherwise voluminous documents. This was, in effect, an exception to the “best evidence rule”. As Dawson J said in Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 195:
To admit secondary evidence in the form of a transcript in these circumstances is no more than an application of the well-established principle that when evidence is voluminous or complex, then abstracts, schedules or charts, proved by a suitably qualified person, may be admitted in evidence as an aid to comprehension.
(footnotes omitted)
See also per Mason CJ, Brennan and Deane JJ at 190; Smith v The Queen (1970) 121 CLR 572 at 577.
A similar situation applies in the case of financial records. Thus, in Potts v Miller (1940) 64 CLR 282 at 303, Dixon J said:
When ... books are allowed in evidence or their production is not insisted upon, an accountant's statement of the result of his examination is receivable as the evidence of a person of skill.
See also R v Seifert (1956) 73 WN (NSW) 358 at 361, 364-5; Lakeman v Finlay (1959) 59 SR (NSW) 5 at 7; R v Hally [1962] Qd R 214 at 228; Re Montecatini’s Patent (1973) 47 ALJR 161 at 169. In Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues [2005] NSWSC 621 at [51], Young CJ in Eq pointed out that where such material is presented by a non-accountant, the original material must be available for examination.
Nevertheless, s 50 of the Evidence Act is a clear authority for the admission as evidence of such material, provided the pre-conditions are met. It is a facultative section: R v Pearce [2001] NSWCCA 447 at [125]. It should be construed and used accordingly.
There are some pre-conditions for the exercise of the power to give such a direction. In particular, s 50(2)(a) of the Evidence Act requires service of the summary and the name and address of the compiler. Such conditions are mandatory and compliance is required: Australian Competition and Consumer Commission v World Netsafe [2002] FCA 519. In this case, there has been such compliance. It is not necessary for a person who compiled the summary to be available to give evidence nor to be connected with the agency from which the underlying documents came. See Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 478 at [14].
The Crown proposes to produce a table, a copy of which was annexed to an affidavit filed in support of the application. The table sets out, in columns, the date of each communication, the time of day it was made, the caller (by reference to the mobile phone number with the subscriber in brackets), the receiver (similarly identified), the direction (or, if on SMS, that fact) and the content. The table contained only those calls which were said to be directly relevant to these proceedings.
Curiously, the section provides for the court to give a direction about the way in which the evidence is to be given, rather than to give the party leave to adduce the evidence by way of a summary. That difference does not exempt the decision from compliance with s 192 of the Evidence Act which applies to “any leave, permission or direction”.
It does seem a somewhat odd use of the term “direction” which is usually used where the court has some more active role in the conduct of the case, such as in the following sections of the Evidence Act: ss 28 (Directions about the order of examination-in-chief, cross-examination and re-examination), 29 (Directions about giving evidence in narrative form), 31 (Directions about questioning Deaf and Mute Witnesses), 33 and 34 (Directions about production of documents), and so on.
Nevertheless, there seems no difficulty in the court making a direction as to this issue should a party apply and it is appropriate, having regard to the relevant consideration, that the direction be given.
In Re Idylic Solutions Pty Ltd [2012] NSWSC 568 at [63], Ward J identified the approach to such an application, saying
There are three matters to be determined for the purposes of the s 50 application: whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, for example, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible conveniently to examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point).
There has been some consideration of what constitutes a summary. Thus, in Beattie v Osman (No 3) [2009] NSWSC 824 at [25], White J took what was said by Mr Odgers, at 191; [1.2.5220] to be “a narrow view” of the term, holding that it should be “an abstract or compendium or epitome or a brief statement of the facts or matters set out in the documents”. Thus, in that case, a “calculation of the total sum stated in each of” a large number of invoices was not a “summary” in the relevant sense.
A broader approach was taken by Einstein J in Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding AG [2004] NSWSC 768 at [19] where his Honour said:
there is a misconception in the proposition that a party adducing evidence of the contents of two or more documents in the form of the summary must include in the summary every detail or fact or feature of the documents purported to be summarised. Clearly enough the section is intended to achieve the purpose of permitting summary evidence in the event that the Court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume and complexity of the documents in question, as long as the other party had been served with a copy of the summary and given a reasonable opportunity to examine or copy the documents.
That “wider” approach was followed by Davies J in Thackray v Gunns Plantations Ltd [2011] VSC 380 at [67], where his Honour observed that:
I do not think that s 50 should be construed restrictedly to require a summary of each document in question ...
In this case, the summary will set out conveniently the evidence that is said to be admissible amongst the full record of the communications made between the mobile phones.
I note that, in Re Idylic Solutions Pty Ltd, Ward J held that there were some restrictions on what a summary may be and the manner of its preparation. Thus, her Honour noted that it must not
·“interpret the contents of the underlying documents” (at [83]);
·involve “an application or an exercise of judgment” (at [83]);
·be a “submission” (at [91], [97]); or
·be “an opinion of an expert” (at [102]).
While those are all understandable restrictions, they may, in fact, be difficult to comply with in practice. For example, it is inevitably a matter of judgement as to what to include in a summary and what not to include. By definition, a summary cannot contain everything in the underlying document or documents and, in at least one sense, it must be a matter of judgement as to what is included adequately and what is not.
The sense in which the term “judgement” is used might be qualified by what Ward J earlier mentioned in the passage cited above (at [21]), where her Honour refers to “conclusions or statements of opinion”. That, of course, cannot exclude conclusions or statements of opinion that are expressed in the underlying documents themselves.
Indeed, the fact that the section itself excludes the operation of the opinion rule must contemplate that some opinion will be involved in the summary. See the comments by Beech-Jones AJ in Botany Bay City Council v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 101 at [12]. As his Honour continued at [13]:
However, questions of fact and degree are involved. There must be a point at which the level of exercise of any judgment or subjective opinion in the formulation of the alleged summary means that what is really being adduced is not, in fact, a true summary of the contents of two or more documents. In some cases the determination of this may be a matter of form rather than substance.
In that case, the relevant table (there were two under consideration, one which caused his Honour no concern) had various columns which set out relevant indicia especially as to the size and type of apartments within property the subject of the proceedings.
Without such tables, his Honour accepted, at [8], that “the volume and complexity of the documents in question” would mean that the “adducing of the evidence concerning the size and type of the apartments from the plans would not otherwise be possible”.
The table, however, included a page which included a “summary”. It purported to express a statement as to how many apartments “comply with the [Residential Flat Design] Code”. Further, the seventh column revealed the author’s “conclusion as to whether a particular apartment shown in the plan complies with “relevant Codes”. His Honour, at [16], rejected these two components of the table as they travelled “beyond any form of summary ... and instead [would be] treated as a submission”.
In this case, the summary did not reproduce a vast number of the itemised telephone calls and messages recorded and supplied by the relevant service provider. Instead, the summary listed, in the way explained above (at [12]), only those calls said to be relevant to the proceedings. While this required the exercise of some judgement, it did not require an interpretation of what was recorded in the underlying document nor any opinion (other than as to relevance) on the primary material nor any expression of opinion in the summary itself of the kind mentioned in the rejected part of the table the subject of consideration in Botany Bay City Council v Minister for Planning and Infrastructure (No 2).
It seems to me that this is a proper approach to the necessary selectivity which is experienced daily in the courts when a party takes the court through a large document or series of documents identifying what that party says is the relevant material on which it relies. The balance of the material may be strictly admissible, but not directly required to be considered for, although part of the evidence before the court, not something on which any reliance is placed.
The requirement to give notice and a copy, combined, in this case, with the Crown’s duty of disclosure, means that any skewed selectivity can be tested and, if necessary, objected to by the other party.
In this case, the consent of Mr Connors made plain the fact that there was no distortion or omission.
There was, then, only a summary of the underlying material with no added conclusion or opinion, other than that inherent in the necessary selectivity of what is to be included, and this did not render the summary inadmissible.
I am satisfied that the volume and complexity of the telecommunications records, a copy of which I have seen, means that it would not be possible conveniently to examine the evidence in those records without a summary of the kind proposed.
I consider that the matters set out in s 192(2) of the Evidence Act justify this course in that the proposal would shorten the length of the hearing, would not be unfair to the accused and involves adducing evidence that is important in the context of the trial. These are These are, of course, criminal proceedings and there is a special need to ensure a fair trial and I am satisfied that this will be respected. I do not consider there is a need to adjourn the proceedings.
As permitted by s 192 of the Evidence Act, I have considered whether there is any other matter that requires refusal to give the direction and am satisfied that there is none, especially in the light of the consent of Mr Connors to the court making the direction.
Accordingly, I gave a direction that the evidence of electronic communications be adduced through the summary. These are my reasons for doing so.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 19 August 2016 |
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Amendments
19 August 2016 Replace “not” with “nor” Paragraph: [11], line 6
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