R v Judith McAllister
[2015] ACTSC 70
•20 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Judith McAllister |
Citation: | [2015] ACTSC 70 |
Hearing Date(s): | 10 March 2015 |
DecisionDate: | 10 March 2015 |
Delivery of Reasons Date: | 11 March 2015 |
Before: | Refshauge J |
Decision: | That the printout of the payroll records of Belgravia Health and Leisure Group Pty Ltd for Judith Anne McAllister and Sophie McAllister be admitted. |
Category: | Principal Judgment |
Catchwords: | TRIAL – PRACTICE AND PROCEDURE – EVIDENCE – Admissibility – Document – Representation – Documents containing representations – Business records – Printed payroll records stored in computer |
Legislation Cited: | Evidence Act 2011 (ACT), ss 69, 144, 146, 147, s 6 Pt 2 Sch 1, s 8 Pt 2 Sch 1 Legislation Act 2001 (ACT), Dictionary, Pt 1 Criminal Code 2002 (ACT), ss 326, 331 |
Cases Cited: | Ah-See v Heilpern (Re A (a child)) (2000) 115 A Crim R 1 Australian Competition and Consumer Commission v Advanced Medical Institute Pty Limited [No 2] (2005) 147 FCR 235 |
Parties: | The Queen (Crown) Judith McAllister (Accused) |
Representation: | Counsel Ms K MacKenzie (Crown) Mr A Williamson (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number(s): | SCC 26 of 2014 |
Refshauge J:
Judith Ann McAllister is accused of committing two offences against s 326 of the Criminal Code 2002 (ACT), namely that she, by deception, dishonestly obtained property belonging to the company managing the Lakeside Leisure Centre in Tuggeranong. The offence is sought to be proved by reliance on a general deficiency in the property, as provided for under s 331 of the Criminal Code, but that is not directly relevant to these reasons.
Ms McAllister has pleaded not guilty to the charges and, as explained by her counsel, Mr A Williamson, in his opening to the jury, she denies portions of the allegations in the first count and, so far as the balance is concerned and as to the second count, asserts a claim of right, claiming that she was authorised by an officer of the company to engage in the relevant claims for payment made by her. In substance, the Crown alleges that Ms McAllister participated in the submission of timesheets for work said to have been done by her daughter Sophie McAllister, which work was not in fact done by her.
The company, relying on these inaccurate timesheets, is said to have paid money, as wages, which is said to have ultimately been received by the accused, being the alleged obtaining of property. One of the witnesses called by the Crown was Mr A Neill, the payroll manager of the company. The Crown sought to tender, through him, certain payroll records. Those records were retained in the computer system of the company. The tender consisted of a printout of those records. The tender was opposed. I permitted it; these are my reasons.
The tender was supported by the Crown by being business records, which were admissible under s 69 of the Evidence Act 2011 (ACT) by virtue of s 147 of that Act. Those sections are in the following terms:
69 Exception—business records
(1) This section applies to a document that—
(a) either—
(i) is or forms part of a record belonging to or kept by an entity in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of the record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made—
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
(3) Subsection (2) does not apply if the representation—
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
(4) If—
(a) the happening of an event of a particular kind is in question; and
(b) in the course of a business, a system has been followed of making and keeping a record of the happening of all events of that kind;
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with the system, of the happening of the event.
(5) For this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).
147 Documents produced by processes, machines and other devices in the course of business
(1) This section applies to a document—
(a) that is produced completely or partly by a device or process; and
(b) that is tendered by a party who asserts that, in producing the document, the device or process has produced a particular outcome.
(2) If—
(a) the document is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence); and
(b) the device or process is or was at that time used for the purposes of the business;
it is presumed (unless evidence sufficient to raise doubt about the presumption is presented) that, in producing the document on the occasion in question, the device or process produced that outcome.
(3) Subsection (2) does not apply to the contents of a document that was produced—
(a) for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b) in connection with an investigation relating or leading to a criminal proceeding.
In fact, while s 147 of the Evidence Act is relevant and helpful, more important may be s 146 which provides:
Evidence produced by processes, machines and other devices
(1) This section applies to a document or thing—
(a) that is produced completely or partly by a device or process; and
(b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2) If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is presented) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Example
It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.
It seems to me that the “outcome” referred to in the latter two sections may be what is called a hard copy or readable copy of the data that is stored in the computer, for example, the printout of the records which was compiled on 4 March 2015, that is well after the police investigation had begun. Indeed, Mr Neill frankly explained that he had been asked by the ACT Director of Public Prosecutions to provide the printout for the purposes of the tender. As a result, Mr Williamson submitted that the document, being the printout, was inadmissible because it was excluded by ss 69(3) and 147(3) of the Evidence Act.
In my view, this confuses the representation and the document in which the representation may be contained. This is clear from the definition of representation contained in a document in s 6 of Pt 2 of Sch 1 of the Evidence Act. This provides:
Representations in documents
For this Act, a representation contained in a document is taken to have been made by a person if –
(a)the document was written, made or otherwise produced by the person; or
(b)the representation was recognised by the person as the person’s representation by signing, initialling or otherwise marking the document.
A representation is an assertion of fact. In Ah-See v Heilpern (Re A (a child)) (2000) 115 A Crim R 1 at 10; [29], Bryson J explained:
The word “representation” in ordinary usage is in my understanding capable of several shades of meaning; it can refer to a narration of some fact, case or argument to an assertion that some stated fact is correct, and it can also refer to the depiction, it may be in words, of something which stands in the place of but is known not to be the original state of fact.
A document is widely defined, both in Pt 1 of the Dictionary of the Legislation Act 2001 (ACT), which contains commonly used terms, that, by s 144, apply to all Acts and statutory instruments, and also in the Evidence Act. In the former, the definition is as follows:
document means any record of information, and includes –
(a)anything on which there is writing; or
(b)anything on which there are figures, marks, numbers, perforations, symbols or anything else having a meaning for people qualified to interpret them; or
(c)anything from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else; or
(d)a drawing, map, photograph or plan.
In the Evidence Act, s 8 Pt 2 of Sch 1 provides:
Reference to documents
For this Act, a reference to a document includes a reference to the following:
(a)any part of the document;
(b)any copy, reproduction or duplicate of the document or of any part of the document;
(c)any part of the copy, reproduction or duplicate.
Applying these various provisions to the present case, it seemed to me that the following was the position: the payroll records, that is the record of the hours worked, the wages payable, wages paid, the tax deducted, the superannuation contributions paid and so on were representations of facts that were kept by the company as part of the records of its business. That they were kept in computer storage did not make them any less valid as business records. Indeed, they would appear also to be documents within the extended meaning given to the word in the definition of the Legislation Act.
These representations were made between 2005 and 2011, well before the current criminal proceedings were in contemplation, and certainly were not made for the purpose of such proceedings. They were made in the ordinary course of the business, as explained by Mr Neill, for the purpose of the business of the company. As a result, such representations were prima facie admissible under s 69(2) of the Evidence Act and were not excluded by s 69(3).
The document, being the printout of the computer stored information, containing the representations – namely the payroll information – was produced for these criminal proceedings, but it does not seem to me that the representations fall within s 69(3) of the Evidence Act. Similarly, the content of the documents were produced in 2005 to 2011 and not for these proceedings and so is not excluded by s 147(3). The Act makes a clear distinction between a document and its contents and any representations.
This has a sound basis in policy, for it would be at least odd if information that consisted of representations, such as the relevant payroll information here, could be used in court proceedings if the machine produced a hard copy of those representations prior to any proceedings being in contemplation, but not precisely the same representations of payroll information, produced as hard copy after the proceedings had been contemplated, or the investigation begun. No policy basis for this difference was suggested.
The purpose of the exclusion in s 69(3) of the Evidence Act was explained by Barrett J in Vitali v Stachnik [2001] NSWSC 303 at [12] as follows:
The purpose of the exclusion is to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self‑serving, in the sense of possibly being prepared to assist the proof of something known, or at least apprehended to be relevant to the outcome of identifiable legal proceedings.
In the circumstances of these proceedings that simply does not apply. The information has been created, the representations made, well before the investigation or proceedings were in contemplation, much less had commenced. All that is now being done is to give access to them and that cannot affect the representations in the inappropriate way suggested by Barrett J.
I am fortified in my conclusions by another authority. In R v Dudko (2002) 132 A Crim 371, Spigelman CJ, with whom Simpson J and Blanch AJ agreed, was considering a tender of telephone records from a prison, which included calls from an escapee from the prison and the accused appellant, who was alleged to have assisted him to escape.
The telephone records were stored on a computer and the document containing them sought to be tendered was downloaded from the computer for the proceedings. His Honour said at 381-2; [59],
The reference in section 69(3) is to the making or obtaining of the representation contained in the record. It does not refer to the production of the record for the proceedings in which it’s sought to be used as evidence. The record itself was created for the purpose of logging and charging inmates for the telephone calls made on their autodial cards. The representation was thus obtained for that purpose. In my opinion it was not made in contemplation of any criminal proceedings, nor in connection with any investigation, but rather for the administration of the remand centre telephone system.
Similarly, in Edmond-Jones Pty Limited and Anor v Australian Women’s Hockey Association Incorporated [1999] NSWSC 285 at [13], Santow J said:
Retrieval to meet a subpoena with no change say from electronic to printed form could not cause section 69(3) to apply. Likewise, mere omission of items which do not alter the effect of what is thought to be admitted should not cause section 69(3) to apply. But when adjustments go further than that in order to meet the requirements of litigation, the position may well be different and requires to be tested.
Further, Lindgren J said in Australian Competition and Consumer Commission v Advanced Medical Institute Pty Limited [No 2] (2005) 147 FCR 235 at 239; [25]-[26]:
In order for section 69(3)(a) to apply a person must have ‘prepared’ or ‘obtained’ the representation (not the document) in contemplation of a proceeding. It is an unusual use of language to refer to the ‘preparing’ of a representation, but I think that the intention is clear enough. The reference is to the person who prepared, formulated, shaped or framed the terms in which the representation is made. This will typically perhaps always be or include the maker of the representation.
The person who ‘obtains’ a representation is a person who seeks the representation or procures it to be made. This person is not the maker of the representation, but may be a person who ‘prepared’ it.
In this case, the document in which the representation is now sought to be tendered does not fall to be excluded by s 69(3) or s 147(3) of the Evidence Act, and I so rule.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 13 April 2015 |
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