R v Georgiadis [No 4]
[2001] TASSC 54
•15 May 2001
[2001] TASSC 54
CITATION: R v Georgiadis & Ors [No 4] [2001] TASSC 54
PARTIES: R
v
GEORGIADIS, John
THEODOSIS, Julie
BELBIN, John
LAMONT, Andrew Wayne
KELLY, Paul Edward
BOSTOCK, John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 237/1999
251/1999
DELIVERED ON: 15 May 2001
DELIVERED AT: Hobart
HEARING DATES: 3, 4, 7, 8 May 2001
JUDGMENT OF: Underwood J
CATCHWORDS:
Evidence - Documentary evidence - Statutory provisions relating to business records - In general - Admissibility as evidence of the truth of its contents - Meaning of "business".
Atra v Farmers & Graziers Co-op Co Ltd (1986) 5 NSWLR 281; Feltafield Pty Limited v Heidelberg Graphic Equipment (1995) 56 FCR 481; Compafina Bank v Australia and New Zealand Banking Group Ltd & Anor [1982] 1 NSWLR 409, followed.
Evidence Act 1910 (Tas), ss40A and 40C.
Aust Dig Evidence [121]
Evidence - Documentary evidence - Statutory provisions relating to business records - In general - Admissibility as evidence of the truth of its contents - Whether record of a business - Whether statement made in the course of or for the purposes of the business.
Atra v Farmers & Graziers Co-op Co Ltd (1986) 5 NSWLR 281; Standard Chartered Bank of Australia Ltd v Antico and Ors (1993) 35 NSWLR 588, followed.
Evidence Act 1910 (Tas), ss40B and 40C(1).
Aust Dig Evidence [121]
Evidence - Documentary evidence - Statutory provisions relating to business records - In general - Meaning of "qualified person" - Reproduction of information made by a qualified person.
Evidence Act 1910 (Tas), s40C(1)(c)(i).
Aust Dig Evidence [121]
REPRESENTATION:
Counsel:
Crown: D G Coates and H Virs
Accused (Georgiadis and Theodosis): A J Glynn
Accused (Belbin): R A Browne
Accused (Lamont): W M Hodgman QC
Accused (Kelly): G D Wendler QC
Accused (Bostock): D J Gunson
Solicitors:
Crown: Director of Public Prosecutions
Accused (Georgiadis and Theodosis): H Drakos and Company
Accused (Belbin): Legal Aid Commission of Tasmania
Accused (Lamont): Milton & Meyer
Accused (Kelly): Butler McIntyre & Butler
Accused (Bostock): Gunson Pickard & Hann
Judgment Number: [2001] TASSC 54
Number of Paragraphs: 50
Serial No 54/2001
File No 237/1999251/1999
THE QUEEN v JOHN GEORGIADIS, JULIE THEODOSIS,
JOHN BELBIN, ANDREW WAYNE LAMONT,
PAUL EDWARD KELLY, JOHN BOSTOCK (NO 4)
REASONS FOR JUDGMENT UNDERWOOD J
15 May 2001
Introduction
Six accused persons are joined together upon an indictment containing 14 counts. Apart from the last two, all counts allege the commission of the crime of conspiracy. These counts allege, in effect, that four conspiracies were entered into, each either to defraud, or alternatively, to commit a crime, or alternatively, to pervert justice. Two of the accused persons are alleged to have been parties to all four conspiracies, one of the accused is alleged to have been a party to two of the conspiracies, and the remaining three accused, Andrew Lamont, Paul Kelly and John Bostock, are alleged to have been a party to one of the conspiracies.
The accused Bostock, Belbin and Kelly have challenged the admissibility of three pieces of evidence. The other three accused are prepared to admit this evidence upon their trials in accordance with the provisions of the Evidence Act 1910 ("the Act"), s113A. Evidence was taken upon the voir dire over several days. At the conclusion of the evidence, counsel for the accused Kelly, Mr Wendler QC, made no submission that the evidence was inadmissible against his client notwithstanding his initial objection to its receipt. I handed down rulings on the voir dire the day after it concluded and said that I would publish reasons for those rulings shortly. These are those reasons.
The impugned evidence consisted of three invoice books being VD 3.1, VD 3.2, and VD 3.3.1. Objection was also taken to the admissibility of 18 slips of paper being exhibits VD 3.3.2, VD 3.5 - 3.7 inclusive, VD 3.8.1 and 3.8.2 and VD 3.9 - 3.20 inclusive. The author of VD 3.1 (except for the last four entries) was Mr Andrew Williams. The author of those four entries, VD 3.2 and 3.3.1 together with VD 3.17 and 3.18, was Mr George Gamble, and the author the other 16 slips of paper was the accused Lamont.
Background
Mr Andrew Williams said that he met the accused Georgiadis and Theodosis in Queensland where they carried on a fish processing business called Royale Seafoods (Queensland) Pty Ltd. The accused Georgiadis asked Mr Williams if he would be interested in setting up a similar operation in Hobart and this he agreed to do. Mr Williams established the business at Gepp Parade, Derwent Park. He was the manager, although he knew very little about the processing of fish products. Initially, the Tasmanian business was owned by Scootmore Pty Ltd, trading as Royale Seafoods (Tas). Later the business was carried on by Royale Seafoods (Tas) Pty Ltd. Mr Williams said that the business began in early 1991. Mr George Gamble, who had considerable experience in the fish processing industry, said that he started work in April 1991 and became the manager after Mr Williams left in June 1993.
The evidence was that the principal business of Royale Seafoods (Tas) was the purchase, processing and export of crayfish. The company also purchased and processed relatively small quantities of scallops, limpets, scale fish and other fish products, including abalone. The operation in Hobart was directed virtually on a daily basis by the accused Georgiadis, who telephoned Mr Williams and/or Mr Gamble and instructed them what product they were to buy and what price they were to pay for it. Occasionally those instructions were given by the accused Theodosis.
Some time in 1992, the accused Georgiadis instructed Mr Williams and/or Mr Gamble to buy some abalone. Mr Gamble contacted the accused Mr Belbin, whom he knew from the days when he worked for another fish processor. Mr Belbin was a deckhand who worked for the accused Bostock, a licensed abalone diver. Several purchases of abalone were made.
Not long after Royale Seafoods (Tas) began purchasing abalone, the accused Georgiadis asked Mr Williams and Mr Gamble, on separate occasions, if they could buy abalone that were not declared to the fisheries authorities on the dive dockets that the law obliged the divers to complete and lodge. Fish caught in excess of the quota attached to the licence and not shown on the dive dockets were known as "off the ticket" abalone, or simply, "offs".
Mr Gamble asked the accused Belbin if he could supply some "off the ticket" abalone. Belbin said he would speak to the accused Bostock about it and in a later conversation with Mr Gamble, he agreed that he would supply "off the ticket" abalone. The price for "off the ticket" abalone was less than that paid for those declared to the authorities, or "on the ticket" abalone.
A system developed. The accused Georgiadis rang Mr Williams or Mr Gamble and told them the quantity of "on the ticket" and the quantity of "off the ticket" abalone that he wished them to buy and the price that he was prepared to pay for each. Mr Gamble passed these requests on to the accused Belbin and in due course, he contacted Mr Williams or Mr Gamble and told them that he had the abalone and where to go to pick them up. Mr Williams, or another employee, then drove to the pick up point and collected the abalone. Sometimes they were delivered to the factory.
In the case of purchases of "on the ticket" abalone, a dive docket was completed by the fisherman and, as was required by law, signed by either Mr Williams or Mr Gamble or another employee of Royale Seafoods (Tas) showing the weight of fish caught. In the case of "off the ticket" abalone no reference to the fish caught was made on the dive docket. Payment for the abalone was made by Mr Williams until he left, and thereafter payment was made by Mr Gamble.
The evidence was that from about July 1992 until about July 1994, the only diver from whom "off the ticket" abalone were bought was the accused Bostock. Mr Williams said that between about July 1992 and the time he left in June 1993, the fish was actually handed over by the accused Belbin, although he recalled meeting Bostock on two occasions. Mr Williams said that on about five occasions he collected the fish from places nominated by the accused Belbin and the rest of the deliveries were made by him to the factory at Gepp Parade. Mr Williams' evidence, not contradicted on the voir dire, was that he drew cheques for "off the ticket" purchases as directed by Mr Belbin. Sometimes the cheques were made payable to the accused Bostock, sometimes the cheques were made payable to the accused Belbin, sometimes the cheques were made out to cash and sometimes those cheques were cashed by Mr Williams and he handed the money to the accused Belbin. On one occasion the accused Belbin asked for, and obtained, a cheque payable to a Mr Hutchings.
Mr Williams' book, VD 3.1
Mr Williams kept a record of purchases of "off the ticket" abalone. He produced an invoice book, VD 3.1. The book consists, or rather consisted, of 50 duplicate pages. Some of the original pages have been torn out, leaving only the carbon copy. The first entry is dated 14 July 1992 and the last is dated 2 July 1993. The first 46 invoices are in the handwriting of Mr Williams, and the last four in the handwriting of Mr Gamble. Mr Williams said that he created this record so that the accused Georgiadis would know where the cheques were going, and also because the police might check the divers' dockets against the payment book and note the discrepancy between cheques paid and the weight of fish caught as disclosed on the divers' dockets. The book was kept in the factory in a desk drawer or on a shelf.
The system with respect to all cheques drawn by Mr Williams was that he recorded the details of each cheque he drew on a document called a "funds transfer sheet". These sheets were faxed on a regular basis to the accused Georgiadis in Brisbane, who then arranged for funds to cover them to be deposited to the credit of the bank account used by Royale Seafoods (Tas).
Mr Williams' evidence was that only purchases of "off the ticket" abalone were recorded in the book, although this is disputed by the defence.
Except in three cases, each page records the name "J Bostock" as the person from whom the abalone were purchased. The three exceptions record the name of the vendors, once as "P Hutchins" [sic], and twice as "J Belbin". On each of the 46 dockets written by Mr Williams is shown the weight of the abalone, the price paid, expressed in dollars per kilo, and the total amount paid. In addition, each docket is dated and shows the number of the cheque that was drawn and the name of the person in whose favour the cheque was drawn. The book can be divided into two parts. The first part comprises invoices 1 - 23 or 24 inclusive, and the other part, the balance of the invoices.
With respect to the first part, Mr Williams noted that there are several unusual features about it, namely:
· some of the dates are misdated 1993 instead of 1992;
· some of the cheque numbers are prefaced with the numbers, "000", but cheques so numbered were not used until 1993;
· the weight of abalone is often expressed down to one or two decimal places, but after invoice 24 is expressed in round numbers; and
· the price does not always appear to be consistent with the price that would have been paid for "off the ticket" abalone.
Mr Williams said that although he had no recollection of this, those discrepancies led him to think that it was possible that the first part of the book was something he reconstructed from other documents, and that in so doing, it was possible that he manipulated the weights and the prices so that the purchases would appear to be purchases of "on the ticket" abalone. Accordingly, in some instances in the first part of the book, the weights and purchase prices are inaccurate. However, the evidence is that the amounts for which the cheques were drawn are accurate.
With respect to the second part of the book (except those invoices written by Mr Gamble), Mr Williams said that the entries consisted of an accurate record of the stated facts and that those entries were made at the time the cheques were written.
Mr Williams said that sometimes he weighed the abalone and immediately recorded the weight and the price in the book and drew the cheque. Sometimes the abalone were weighed by Mr Gamble or someone else in the factory, and if Mr Williams was not there at the time, the weight was written on a white board kept at the factory. In this case, Mr Williams copied the information on the white board into the invoice book. Mr Williams said that the entries made by him in the second part of the book were made on the day that each was dated, being the day on which the cheque was drawn. He conceded that on some occasions, the cheque was not drawn the day the fish were received and in such a case the entry in VD 3.1 was not made at about the time of the weigh in. He was unable to identify which of the invoices were written up at about the time the fish were weighed and which of them were written up some time after the fish were weighed. Further, in the case of the latter, he was unable to say how many days after the weigh-in the cheque was drawn and the entry made, but conceded that it could have been up to three weeks.
Although Mr Williams' evidence was that VD 3.1 contained only a record of "off the ticket" abalone, he conceded that it appeared on examination, as if invoices numbered 35, 36, 44 and 46, related to purchases of "on the ticket" abalone, but he was unable to explain why those entries were in this particular book.
The law
The Crown sought the admission into evidence of VD 3.1 on several bases:
· the Act, s40C;
· the Act, s81B (second part only);
· the Act, s40A (second part only).
A condition precedent to the admission of evidence pursuant to the Act, s40A is that:
"(a) the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter, or event; and
(b) the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness."
The evidence of Mr Williams that I have set out, fails to persuade me that, with respect to any one of the invoices in the second part of VD 3.1 (excluding the last four invoices), the information with respect to the weight of fish was entered in the book at or about the time of weigh-in. Further, the evidence fails to persuade me that the method and time of the preparation of the second part of the book were such as to indicate its trustworthiness. Accordingly, assuming for the moment that VD 3.1 is a record made in the regular course of a business, there is insufficient evidence to establish the other conditions precedent to the admission of the record pursuant to the Act, s40A.
Section 40C is a different matter. It relevantly provides:
"(1) Where in a legal proceeding evidence of a fact is admissible, a representation in a document of the fact is admissible as evidence of the fact, if the representation ¾
(a)is in a document that forms part of a record of a business, whether or not the business is in existence at the time when the question of admissibility arises;
(b)was made in the course of, or for the purposes of, the business; and
(c)was made by a qualified person or reproduces or was derived from one or other or both of the following descriptions of information:
(i) information in one or more representations, each made by a qualified person in the course of, or for the purposes of, the business; and
(ii) information from one or more devices designed for, and used for the purposes of the business in or for, recording, measuring, counting, or identifying information, not being information based on information supplied by any person.
(2) …
(3) A representation is admissible in a legal proceeding, notwithstanding ¾
(a)the rules against the admissibility of hearsay evidence;
(b)the rules against the admissibility of secondary evidence of the contents of a document;
(c)that a person concerned in the making of the representation is a witness in the legal proceeding, whether or not he gives testimony consistent or inconsistent with the representation; or
(d)that the representation is in such a form that it would not be admissible if given as oral testimony ¾
but this section does not make admissible a representation that is otherwise inadmissible."
The terms of the section are very wide. Section 40B defines "business" to include:
"(a)any business (including business as a banker), profession, occupation, calling, trade, or undertaking, whether engaged in or carried on –
(i) by the Crown in right of this State or any other right, or by a person;
(ii) for profit or not; or
(iii) in this State or elsewhere; and
(b)the public administration of the Commonwealth, or a State or Territory of the Commonwealth, or of any other country, whether carried on in this State or elsewhere;".
The Evidence Act 1898 (NSW), ss14CD and 14CE as amended to 1986, were indistinguishable from the Act, s40C. With respect to these provisions, Wood J said in Atra v Farmers & Graziers Co-op Ltd (1986) 5 NSWLR 281 at 286:
"I am in no doubt that the provisions constitute remedial legislation designed to permit the reception into evidence of business records without undue expense or delay, notwithstanding the rules against hearsay and against secondary evidence of the contents of documents. As such, they should be given a literal interpretation and application: Re Marra Developments Ltd and the Companies Act [1979] 2 NSWLR 193 at 197; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542; Compafina Bank v Australian & New Zealand Banking Group Ltd [1982] 1 NSWLR 409 at 411; Ross McConnel Kitchen & Co Pty Ltd (In Liq) v Ross (No 1) (1985) 1NSWLR 233 at 234-235; Supetina Pty Ltd v Lombok Pty Ltd (1984) 59 ALR 581; 5 FCR 439; and Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 650."
With respect to the words "record of a business" his Honour said, at 288:
"... the term 'record of a business' denotes documents which truly might be regarded as the internal records kept by or for that company in respect of its business such as its books of account, ledgers, employment records, stock records, postage books, its own correspondence, internal memoranda, and so on."
This approach was approved in Feltafield Pty Limited v Heidelberg Graphic Equipment (1995) 56 FCR 481 at 483. In Compafina Bank v Australia and New Zealand Banking Group Ltd & Anor [1982] 1 NSWLR 409, Hunt J said s14CE of the NSW Act should be given a wide interpretation. See also Re Marra Developments Ltd [1979] 2 NSWLR 193.
According to the evidence on the voir dire, the business of Mr Williams' employer was (inter alia) the purchase of "off the ticket" abalone. VD 3.1 is a record of such purchases. Unlike s40A, there is no condition precedent to the admission of evidence under s40C that the record be trustworthy. This issue is dealt with by s40G. Nor is there any statutory requirement that the record be made at or about the time of the happening of the recorded event, as is the case in s40A. Each page of VD 3.1 (excluding the last four invoices) records that on the date stated on each page, a cheque bearing the number written on the page was paid to the person whose name is shown on the page for the sum shown on that page and that the amount of the cheque was calculated by multiplying the rate per kilo by the number of kilos shown on that page. It is immaterial that, with respect to some of the invoices written before January 1993, Mr Williams said that the weights and rate per kilo were not in accordance with the weights purchased, nor in accordance with the rate paid. See the Act, s40C(3)(c).
This record was clearly made both in the course of the business and for the purposes of the business. Mr Williams' evidence was that the book was kept so that the accused Georgiadis would know where the cheques were going, and also because, if the records of unlawful purchases of abalone were kept with the records of the company's legitimate purchases, the police might check the divers' dockets against the payment book and note the discrepancy between cheques paid and weight of fish caught as disclosed by the divers' dockets. Finally, as Mr Williams was an employee of Royale Seafoods (Tas), and was the person who made the calculations and wrote out the cheques, the representations that I have set out were made by a qualified person as defined by the Act, s40B. Each representation made by Mr Williams in VD 3.1; viz, that on the date stated on each page a cheque bearing the number written on the page was paid to the person whose name is shown on the page for the sum shown on that page and that the amount of the cheque was calculated by multiplying the rate per kilo by the number of kilos shown on that page is admissible pursuant to the Act, s40C. A ruling in those terms with respect to VD 3.1 (except the last four invoices) was given orally by me the day after the voir dire concluded. That ruling needs to be amended.
In addition, the record of the business, VD 3.1, not only contains a representation that the amount of the cheque was calculated by multiplying the rate per kilo by the number of kilos shown on that page, but it also contains a representation that a quantity of abalone weighing the amount shown was in fact received by Royale Seafoods (Tas). In my oral ruling, I excluded the latter representation from admission into evidence pursuant to s40C. I did so because Mr Williams' evidence was that he could not say, with respect to any one invoice, that he was the person who weighed the fish in. To be admissible under the Act, s40C, the representation has to be made by a "qualified person" which (inter alia) means an employee who, "at that time had, or may reasonably be supposed to have had, personal knowledge of the fact" which is represented by the record of the business. Thus I concluded that the evidence was insufficient to establish that, with respect to the last mentioned representation, Mr Williams was a "qualified person" as that expression is defined by s40B. However, upon reflection, I have come to the conclusion that the representations in VD 3.1 (excluding the last four invoices) that the stated weight of fish was received by Royale Seafoods (Tas) should also be admitted into evidence.
The evidence was that if the fish was not weighed in by Mr Williams, it was weighed in by another employee. Thus the maker of the original representation must have been a "qualified person" within the meaning of the Act, s40B. The Act, s40C(1)(c), permits not only representations made by qualified persons, but also permits representations:
"(c) … reproduce[d] or … derived from one or other or both of the following descriptions of information:
(i)information in one or more representations, each made by a qualified person in the course of, or for the purposes of, the business; and
(ii)information from one or more devices designed for, and used for the purposes of the business in or for, recording, measuring, counting, or identifying information, not being information based on information supplied by any person."
Initially, I considered that this alternative provision had no application to the present case because of the conjunction "and" between pars(i) and (ii). However, upon a more careful reading, it is clear that the paragraph authorises the admission into evidence of a representation (in a document that is part of a record of a business that was made in the course of the business) if it "reproduces … one or other" of the descriptions of information that follow. One of those descriptions is a representation made by a qualified person (as defined by s40B) in the course of or for the purposes of the business. Such a person in this case, is the employee who weighed in the "off the ticket" abalone. If Mr Williams did not have personal knowledge of the weight of fish received, a representation in VD 3.1 that the stated weight of "off the ticket" abalone was received by Royale Seafoods (Tas) was information reproduced by Mr Williams from information made by a qualified person and thus admissible pursuant to the Act, s40C. I amend my oral ruling accordingly.
The Act, s81B, relevantly provides:
"(1) Where direct oral evidence of a fact … would be admissible in a proceeding, a representation made by a person in a document tending to establish the fact … is, subject to this Division, admissible as evidence of the fact … in the proceeding, if ¾
(a) in the case of a representation ¾
(i) tending to establish a fact, the maker of the representation had personal knowledge of the matters dealt with by the representation; or
(ii) …
(b)the maker of the representation is called as a witness in the proceeding … and
(c)the court is satisfied, in the case of a representation –
(i) tending to establish a fact, that the representation was made at a time when the facts stated in the document were fresh in the memory of the witness; or
(ii) …".
With respect to the representations in the second part of VD 3.1 (excluding the last four invoices) that on the date stated on each page, a cheque bearing the number written on the page was paid to the person whose name is shown on the page for the sum shown on that page and that the amount of the cheque was calculated by multiplying the rate per kilo by the number of kilos shown on that page, the evidence of Mr Williams was that each entry was made by him on the date shown on the page and at the time of doing the acts represented. Accordingly, I am satisfied that the representations were made at a time when the facts stated were fresh in his memory. Similarly, I am satisfied that Mr Williams had personal knowledge of those representations and that they are therefore admissible pursuant to the Act, s81B. However, for the reasons already given I am not satisfied that Mr Williams had personal knowledge of the representation that a certain weight of fish was actually received into the factory and consequently, that representation is inadmissible pursuant to the Act, s81B. However, in the light of the conclusion that I have reached with respect to the effect of s40C, this exclusion is immaterial.
Mr Gamble's books, VD 3.2 and VD 3.3.1
Mr Gamble's evidence was that after Mr Williams left the employ of Royale Seafoods (Tas) at the end of June 1993, he continued the system instituted by Mr Williams and completed the last four invoices in VD 3.1. Like Mr Williams, he was unable to recall whether he weighed in the fish shown on any one of those four invoices but said that if he did not, the weighing would have been done by another employee and the information transmitted to him. He said that the other information on the four invoices was written at the time the cheques were written out and so the ruling given with respect to the second part of VD 3.1 (except the last four invoices) applies, for the same reasons, to those four invoices.
Mr Gamble said that after VD 3.1 was full, he started another invoice book, but its present whereabouts are unknown. When that book was full, he used another one which he produced, VD 3.2. In this book he recorded all purchases of "off the ticket" abalone. He explained that purchases of "on the ticket" abalone were recorded in a "weigh-in" book that the business kept to record the weights of all product, other than "off the ticket" abalone, received at the factory.
Mr Gamble said that about the time he started to keep VD 3.2, he commenced purchasing "off the ticket" abalone from the accused Kelly. He said that he had known the accused Kelly for a number of years and knew that he was a licensed abalone diver. Mr Gamble said that the accused Kelly agreed to deliver the abalone to the factory which, as he told the accused Georgiadis, lessened the risk of him (Gamble) being caught by the police. As the purchases of "off the ticket" abalone from the accused Kelly increased, similar purchases from the accused Belbin decreased.
Mr Gamble said that no one other than him, or fellow employees, Mr Johns and the accused Lamont, received "off the ticket" abalone. He said that if he was not there when the fish came in, Mr Jones or the accused Lamont weighed the fish as it was received and recorded the weight and the name of the fisherman on a piece of paper which was left on his desk. Mr Gamble said that he transcribed the information on the piece of paper into the invoice book. He said that this usually happened if the fish came in at night, in which case he entered the weight in the book the next morning. Mr Gamble said that when he came to write out the cheque, he completed his entries in the book. This may have occurred on the day of the delivery or a day or two later. On each page of the book Mr Gamble recorded the weight of the fish and the cheque number, but instead of describing the fish as abalone, he described them as "bait" or "duck-bills" or in some other similarly fictitious way. To disguise the identity of the fisherman he wrote "PK Fisheries" for the accused Kelly and "J & P" for the accused Belbin and Bostock.
Mr Gamble said that he kept the record principally to protect himself against possible accusations by his employer that he had been stealing money, and also to record the weights and amounts paid to the accused Belbin, Bostock and Kelly in case there was an argument about that.
VD 3.3.1 is another invoice book that Mr Gamble started when VD 3.2 was full. It was kept in the same way as its predecessor, but Mr Gamble said that after a while, he stopped recording the information in a book and just made payments from slips of paper that were written at the time of the weigh-in. The remainder of the exhibits comprised 18 such slips of paper that were seized by the police when they raided 26 Gepp Parade. Of those slips of paper, two were written by Mr Gamble (VD 3.17 and 3.18) and the rest by the accused Lamont. In so far as the latter slips of paper bear the word "off" or "offs" or are shown by other evidence to be referring to "off the ticket" abalone, they are exceptions to the hearsay rule and admissible as admissions made by the accused Lamont.
Unlike VD 3.1, the evidence with respect to VD 3.2 and 3.3.1 establishes that the source of the information for the records, and their method and time of preparation were such as to indicate their trustworthiness. There was a regularity and timeliness about the recording of the weight of fish received, the noting of that information and the entry of that information into the record not more than a day later. The conditions precedent set by the Act, s40A have been established. However, counsel for the accused Bostock and Belbin submitted that neither VD 3.2 nor VD 3.3.1 was a record of a business as defined by either s40A(5) or s40B. They further submitted that if it was a record of a business, it was not made in the course of, nor for the purposes of, the business as is required by s40C(1). The Act, s40A defines a business to include for the purposes of that section:
" … any business, profession, occupation, calling, trade, or undertaking whether engaged in or carried on by the Crown, or by a statutory authority, or by any other person."
The definition of a business for the purposes of s40C, although wider than that enacted for the purposes of s40A, is for present purposes on all fours with it. The submission was that the record was not kept in the regular course of the business because Mr Gamble kept it for his own protection. Mr Gamble said that the record was not produced to his employers, but no doubt it would have been had any dispute arisen with respect to his dealings in "off the ticket" abalone. The record was kept in the office at Gepp Parade and was seized from there by the police. The only information recorded in the two exhibits was information about the receipt of and payment for "off the ticket" abalone. There was no information personal to Mr Gamble recorded. A not insubstantial part of the business of Royale Seafoods (Tas) was the receipt and payment for "off the ticket" abalone. The two exhibits were a record of this business. I do not understand how the record can lose the quality of being made "in the regular course of a business" (s40A) or made in the "course of the business" (s40B) simply because the motive for its maintenance was to ensure that no one could accuse the record keeper of stealing the company's money. Indeed, many commercial records come into existence in order to guard against not only misappropriation, but also to guard against allegations of misappropriation. The evidence was that this business was in part, unlawful. Evidence of its conduct of the unlawful business was not kept in the books that recorded its lawful activities. Those engaged in that business would ordinarily be expected to keep records of the unlawful transactions for the purpose of avoiding allegations of misappropriation. A record of payments of money made in pursuance of a conspiracy to defraud the Commonwealth of income tax was created in Saffron v R (1989) 17 NSWLR 395. When cash received in the business but not entered into the ordinary books of the business was paid to the appellant, a copy of the page from the book recording that payment was given to him. This book was held to have been a record made in the course of the business. The fact that the appellant was given a copy of each page when he received the money was not material in the Court of Appeal's conclusion. Hope JA said at 428:
"In my opinion it was also admissible as a business record. Part of the business activities of the various businesses was to make cash payments to Saffron. It would be proper if not necessary to keep a record of those payments in the ordinary course of keeping business records. Mrs Reid having given evidence and Ms Lichtenegger being dead, the requirements for the admissibility of statements in the AS book under s14CE and s14CG were satisfied, unless the book does not satisfy the requirements of s14CE(4) and s14CE(5) that the statement must be in a document which forms part of a record of a business and must have been made in the course of or for the purposes of the business. In my opinion each of these requirements is satisfied, notwithstanding that the occasion for the institution of the record was a disagreement with Saffron as to whether a payment had been made and that the book would provide protection for Mrs Reid and Ms Lichtenegger as well as providing a record both for Saffron and for the business. I see no reason why a record cannot be properly said to be made in the course of and for the purposes of the business where it both properly records financial acts of the business and provides protection for the person making the records. A great many ordinary business records would fulfil both functions."
For the purposes of both ss40A and 40C, "business" is defined to include "occupation". If I am wrong with respect to the exhibits being records of the business of Royale Seafoods (Tas), I am satisfied that they are records made in the regular course of the "occupation" of Mr Gamble as the manager of a company engaged in the business of unlawfully trading in "off the ticket" abalone. In Standard Chartered Bank of Australia Ltd v Antico and Ors (1993) 35 NSWLR 588, Hodgson J said at 590 - 591:
"In my view, dealing first with the question of interpretation, it does seem to me that the wide definition of business does indicate that it should not be limited to an activity carried on by the person or company in question in its own right. It seems to me that, by extending 'business' to 'occupation', the provision leaves open the possibility that a record made by an employee relating to his occupation may be a business record. Whether or not it is a business record, it seems to me, would depend upon whether the document relates in an appropriate way to the occupation, and can correctly be described as a record of the occupation. It must, of course, to be admissible under s14CE, also be made in the course of the occupation or for the purposes of the occupation."
On behalf of the accused Belbin and Bostock it was submitted that in any event, the provisions of the Act, s40D prohibited the admission of representations in the two invoice books. The section provides:
"Notwithstanding section 40C, a representation made or obtained for the purpose of, or in contemplation of, a legal proceeding or any other legal proceeding arising out of the same or substantially the same facts is not admissible."
The submission was that as Mr Gamble kept the books to guard against an allegation that he had misappropriated the company's or the fishers' money, the representations were made for the purpose of or in contemplation of legal proceedings; the relevant proceedings being proceedings against Mr Gamble for stealing or for committing a similar crime. The short answer to this submission is that there is no evidence to support it. The evidence was that Mr Gamble's purpose in keeping the records was to avoid such proceedings being instituted or contemplated. It was not put to him in cross-examination that he kept the books for the purpose of, or in contemplation of, any legal proceeding. There is no reason why I should infer that this was the purpose, particularly as Mr Gamble must have realised that a prosecution for theft at the instigation of his employer was unlikely because it would almost certainly result in a full disclosure of the unlawful trade carried on by Royale Seafoods (Tas).
For these reasons I am satisfied that VD 3.2 and VD 3.3.1 are business records, admissible in accordance with the provisions of the Act, s40A. It follows from that conclusion and the reasons already given, that the representations in those exhibits are also admissible pursuant to the provisions of the Act, s40C. Further, apart from the representation that a certain weight of abalone was actually received by Royale Seafoods (Tas), those representations are also admissible pursuant to the Act, s81B.
I exclude invoice No 52 from the foregoing ruling with respect to VD 3.2. This invoice shows that the fisherman who sold the "off the ticket" abalone was "D Paine". Mr Gamble explained that at one stage, he decided to simply invent names to record the purchases, but he quickly abandoned this idea when he realised that he would not be able to remember which fictitious name referred to which of the three accused who have objected to the admission of this evidence. Indeed, his evidence was that he could not now recall whether invoice No 52 was a purchase from the accused Belbin or from the accused Bostock or from the accused Kelly. For this reason that invoice will be excluded from the trial of those three accused.
The slips of paper
Although not bound in a book, the slips of white paper are business records in exactly the same way as VD 3.2 and 3.3.1 were business records. They came into existence as part of the system and formed part of the records of that system. The method and time of their preparation indicates that the record they comprise is trustworthy. They too, are admissible pursuant to the Act, ss40A and 40C. In the case of each slip of paper, the evidence shows that it was written at the time the fish were weighed by the person who did the weighing, so all the representations on them are also admissible pursuant to the Act, s81B.
A footnote
The evidence on the voir dire from Messrs Williams and Gamble was largely unchallenged and these reasons are based upon that evidence. As these witnesses have yet to give evidence upon the trial, it would be unwise to publish these reasons to persons other than counsel, until after the conclusion of the trial in case they are read by the jurors who have been empanelled to try the issues between the Crown and the six accused.
0
3
1