R v Pratten (No 5)

[2012] NSWSC 1668

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Pratten (No 5) [2012] NSWSC 1668

Hearing dates:

12 March 2012, 14 March 2012, 19 March 2012-23 March 2012, 26 March 2012-29 March 2012, 02 April 2012,04 April 2012-05 April 2012, 11 April 2012,14 April 2012 - 30 April 2012, 01-02 May 2012, 04 May 2012, 07 May 2012, 09 May 2012 - 16 May 2012

Decision date:

16 May 2012

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

1.The BDO Vanuatu website and its contents is admissible in the proceedings.

2. PKF Vanuatu website and its contents is admissible in the proceedings.

3. CPI website and its contents is admissible in the proceedings.

4. Civil Aviation Insurance website and its contents is inadmissible in the proceedings.

Catchwords:

CRIMINAL - Interlocutory proceedings - provenance of documents - business record - unfairly prejudicial pursuant to s 137 of the Evidence Act 1995

Legislation Cited:

Evidence Act 1995 (Cth)

Cases Cited:

NSW Crime Commission v Cassar [2012] 1170

Category:

Procedural and other rulings

Parties:

Regina (Crown)
Timothy Charles Pratten (Defendant)

Representation:

Counsel:
K. Chapple SC with
B. Hatfield (Crown)
M. Leighton-Daly (Defendant)

File Number(s):

2010/315475

EX TEMPORE JUDGMENT

1. HIS HONOUR: There are nine issues raised as to the provenance of documents sought to be tendered by the Crown. I will deal with the documents separately, notwithstanding that they are in one sense in the same category, and I will deal with them in reverse order.

2. The last page of the document, which is the annexure in Exhibit J on the voir dire, is no longer pressed. The second last document is a document, as are all of the documents, obtained from the web site The Court, as presently constituted, is familiar with the web site. It is a web site that provides the content of a web site at a particular point in time, as to which evidence on the voir dire attests. The witness refers to the web site as a "snapshot of web sites over time".

3. The date on which the snapshot is taken is disclosed in the top right-hand corner of the document produced. My strong view is that the objection is misconceived. The document seems to go to matters that are otherwise agreed.

4. In the case of the document referring to BDO Vanuatu, objection is taken on two bases: firstly, that it is not a business record; and, secondly, the nature of its provenance or the lack of information as to the person who made the representations of fact contained therein.

5. A court is not to assume a document is a business record. Its provenance must be proved or inferred from proper material: NSW Crime Commission v Cassar [2012] 1170, and the cases these cited. It seems to me that a website in the name of BDO Vanuatu, which discloses seemingly complimentary information about BDO Vanuatu, is a document which almost irresistibly arrives from BDO and, given the nature of the manner in which documents are now filed and/or kept, including, for example, cloud computing, the overwhelming inference is this is a document that derives from BDO Vanuatu. On the voir dire the Court has been provided with evidence as to security necessary to alter the content if the site and the possession of that material by BDO. I will admit that document on the basis that it is a business record of BDO Vanuatu as at 2 August 2003.

6. The second document with which I deal is a document being the contents of a website as at 28 August 2007 of PKF Vanuatu. It is similar to the document relating to BDO in that the overwhelming inference is that it is a document of PKF. It is a website of PKF which describes PKF in complimentary terms and the overwhelming inference is that this is a document of PKF. Again, the contents are not in issue. Further, access to the site for alteration of its contents is available only to PKF. I will admit it on that basis.

7. In relation to both PKF and BDO documents to which I have now referred, I will admit the documents as business documents and the contents thereof but not allow their use and, indeed, disallow the use to prove lack of relationship with companies or persons not mentioned in the documents to which I have referred. The latter qualification is made under s 136 of the Evidence Act 1995.

8. The next document with which I deal is a document also from the archive website, capturing a document from the website of that is a Vanuatu address for internet purposes, and said to be dated 26 May 2008. The document describes in very general terms the nature of CPI. For the same reasons I have given in relation to BDO and PKF, I admit that document with the same qualifications and restrictions.

9. Lastly, I turn to the document which is the document of a website again obtained from the a website, as is obvious to anyone familiar with the Internet, that this is an Australian Internet address. It seems to have been written by Civil Aviation Insurance which, on the information otherwise available, is part of the business of Rural and General Insurance Broking Pty Ltd, one of the companies which with which Mr Pratten is associated and indeed the document states Mr Pratten is its managing director.

10. The Crown relies upon this document, inter alia, for the purpose of an admission. The document states in the third person that Mr Pratten owned, that is as at 20 November 2008, a helicopter which has been the subject of evidence in these proceedings. The document describes the ownership in the third person. The inference I draw from that is that it was not written by Mr Pratten. The Crown says I should draw the inference that, as managing director, Mr Pratten must have approved the document. That is likely to have been, but not necessarily, what occurred and whether the approval of the document included a close scrutiny of all the statements and documents and comments is a different question.

11. It seems to me that using the document as an admission of ownership in circumstances where, on the face of it, it does not seem to have been written by Mr Pratten, even if it were published by a company with which he is associated, is unfairly prejudicial to Mr Pratten in a way that outweighs its probative value and in the circumstances I reject the evidence under s 137 of the Evidence Act 1995, that is, the evidence of the second page of the annexure that forms part of Exhibit J on the voir dire.

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Amendments

29 April 2016 - amended case name in coversheet

Decision last updated: 29 April 2016