Slater (a pseudonym) v The Queen
[2021] VSCA 153
•7 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0053
| JODIE SLATER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To avoid the possibility of prejudice in the applicant’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGE: | PRIEST and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 May 2021 |
| DATE OF JUDGMENT: | 7 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 153 |
| JUDGMENT APPEALED FROM: | [DPP v Slater] (Unreported, County Court of Victoria, Judge Lacava, 14 May 2021) |
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CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify that interlocutory decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal – Whether PDF documents created from data on servers located overseas admissible – Whether contents of the documents offend the rule against hearsay – Whether documents ‘foreign material’ – Documents not admissible – Evidence Act 2008 ss 48, 59 and 69 – Foreign Evidence Act 1994 (Cth) s 25.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr O P Holdenson QC with Mr J O’Connor | Kaczmarek Grigor Lawyers |
| For the Respondent: | Mr Y K Hardjadibrata | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
SIFRIS JA:
Introduction
An indictment filed in the County Court charges the applicant with trafficking in a drug of dependence[2] (charges 1, 2 and 3), and with importing a border controlled drug in a marketable quantity[3] (charge 4).[4] She has pleaded not guilty to each charge. A jury is yet to be empanelled.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC.
[3]Criminal Code 1995 (Cth), 307.2(1).
[4]Charges 1 and 3 relate to methylamphetamine; charge 2 to cocaine; and charge 4 to methamphetamine.
The gist of the case that the prosecution will aim to make at trial may be gleaned from the Amended Summary of Prosecution Opening, dated 14 October 2020 (framed by counsel for the respondent in this Court):
The prosecution alleges that the [applicant] was engaged in the business of trafficking the drugs methylamphetamine and cocaine. She trafficked methylamphetamine and cocaine over several months in mid-2013. The methylamphetamine and cocaine that the [applicant] trafficked was imported from overseas. The [applicant] resumed her business of trafficking methylamphetamine in February 2014. In that month a supply of methamphetamine for her business was intercepted by customs officers. The periods when the [applicant] was importing and trafficking in drugs coincided with periods when her boyfriend [named] was in prison. The prosecution alleges that the [applicant] imported and trafficked the drugs by means of the internet black market or ‘Dark Web’. She used the website ‘Silk Road’ to purchase methylamphetamine and cocaine from overseas under the account moniker ‘HighTime’. The drugs imported were then advertised and sold in Australia using the account moniker ‘OZHigh’. The drugs purchased from overseas were imported in parcels sent by way of the international postal service. The drugs were packaged and concealed in ‘MYLAR’ or moisture barrier bags to avoid customs detection. The [applicant] then sold the drugs to customers on the Silk Road website under the ‘OZHigh’ account, and the drugs were delivered to them in concealed ‘MYLAR’ or moisture barrier bags by way of Australia Post parcel delivery.
…
‘Silk Road’ is an online marketplace on the ‘Dark Web’ which is used to sell unlawful commodities such as drugs. It is operated as a ‘Tor hidden service’ so that online users can browse it anonymously and securely without potential monitoring of communications. Silk Road vendors use ‘MYLAR’ or moisture barrier bags to heat seal illegal products to evade detection of its contents by customs officers or police, especially when articles are sent by international mail or post.
For the purposes of its case, the prosecution seeks to rely on information — dubbed ‘the Silk Road material’ — retrieved from computer servers by the United States Federal Bureau of Investigation (‘FBI’), following the 1 October 2013 arrest of Ross William Ulbricht (who went by the nom de guerre ‘Dread Pirate Roberts’), whom the FBI alleges was the owner and operator of Silk Road. The FBI located a number of computer servers in the United States of America and in other countries associated with the operation of Silk Road. Based on the forensic analysis of these servers the FBI allegedly was able to recover transaction histories and private message communications associated with Silk Road users. This information was collated and organised, and, upon request, provided to law enforcement agencies. In response to such a request, the FBI provided documents to Victoria Police by way of a compact disc (‘CD’) containing information relating to the Silk Road accounts identified by the user-names ‘OZHigh’, ‘High Time’ and ‘umptydumpty’, these each allegedly being pseudonyms used by the applicant. The prosecution alleges that the documents reveal details of drug transactions associated with the user-names, and thus the applicant.
By a ruling dated 13 May 2021 (‘the ruling’ or ‘the interlocutory decision’), the trial judge refused an application by the applicant’s counsel to exclude the ‘Silk Road material’ evidence. Subsequently, on 14 May 2021, the trial judge declined to certify under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case (‘the certification decision’).
Pursuant to s 296 of the CPA, the applicant seeks to review the judge’s certification decision to refuse certification; and, if successful in that application, leave to appeal against the interlocutory decision, relying on the following ground:
The trial judge erred by not ruling PDF documents disseminated to Victoria Police by the FBI (being what were known before the trial court as ‘the Silk Road material’) inadmissible, in circumstances where that evidence:
·Was inadmissible hearsay;
·Fell to be excluded pursuant to s 25 of the Foreign Evidence Act 1994 (Cth).
For the reasons that follow, both applications should be granted, and the interlocutory decision set aside.
The legislative regime
We pause to note salient aspects of the legislative regime that governs the present applications.
Section 295(2) of the CPA provides that a party to a proceeding in the County Court for the prosecution of an indictable offence may only appeal to the Court of Appeal against an interlocutory decision by leave. If, as in the instant case, the interlocutory decision concerns the admissibility of evidence, s 295(3)(a) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies (among other things) ‘that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’.
Should — as occurred in this case — the judge refuse to certify under s 295(3), s 296 provides a mechanism by which the party who requested certification may apply for a review of that decision. On such a review, s 296(4) requires the Court to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’.
Section 297 permits the Court to give leave if ‘satisfied that it is in the interests of justice to do so’ having regard to several enumerated criteria, including whether the determination of the appeal against the interlocutory decision may ‘resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial’ or ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial’, and ‘any other matter that the court considers relevant’.
As will become clear, the ruling is flawed in a significant respect. It thus would be contrary to the interests of justice to permit it to stand. Furthermore, and self-evidently, setting the ruling aside will reduce the likelihood of a successful appeal against conviction in the event that the applicant is convicted at trial.
The Silk Road evidence
Before turning to the submissions made to the trial judge and to his ruling, it is necessary to say something about evidence concerning the Silk Road material introduced on voir dire.
By way of background, committal proceedings in relation to the charges against the applicant were conducted on 9 June 2016, and an indictment was later filed in the County Court.
A Notice of Intention to Call Additional Evidence,[5] dated 14 October 2020 (that is, the same date as the Amended Summary of Prosecution Opening),[6] was subsequently filed. It was in the following form:
TAKE NOTICE that, if necessary, it is intended at your trial to call the evidence as set out hereunder, in addition to the evidence which was received at the committal proceedings.
Certification under subsection 26(1) of material obtained as a result of a request made by or on behalf of the Attorney-General dated 15 February 2016 attached hereto
Affidavit of Special Agent Samad D. Shanhrani [sic] dated 19 January 2016 attached hereto
[5]See CPA, s 188.
[6]See CPA, s 182.
Attached to the Notice was a certificate under s 26(1) of the Foreign Evidence Act 1994 (Cth), dated 15 February 2016, signed by the Assistant Secretary, International Crime Cooperation Central Authority, International Crime Cooperation Division, Attorney-General’s Department, certifying that
the affidavit, annexed witness statement and CD attached to this certificate was obtained from the United States by this Department as a result of a request for assistance in the matter of [applicant’s name] (Operation Foreignmail) dated 2 May 2015, made on behalf of the Attorney-General of the Commonwealth of Australia.
The affidavit referred to in the certificate was sworn or affirmed[7] in New York on 19 January 2016 by ‘Special Agent Samad D. Shahrani’. Attached to the affidavit was a statement in the matter of ‘Operation Foreignmail’, dated 8 January 2015, made by ‘Special Agent Samad David Shahrani’. So far as relevant, that statement was in the following terms:
3. I am a Special Agent with the United States Department of Justice, Federal Bureau of Investigation (‘FBI’). I have been a Special Agent with the FBI since September of 2011. I have been involved in the investigation of the TOR hidden service known as Silk Road and am familiar with the results of the investigation.
4. On October 1, 2013, the FBI arrested Ross William Ulbricht, aka ‘Dread Pirate Roberts’, aka ‘DPR’, aka ‘Silk Road’, based on a complaint filed in the United States District Court for the Southern District of New York alleging that Ulbricht to have been the owner and operator of Silk Road. As explained in that complaint, in the course of the FBI’s investigation the FBI located a number of computer servers, both in the United States of America and in multiple foreign countries, associated with the operation of Silk Road.
5. Based on forensic analysis of images of these servers the FBI was able to recover, amongst other things, transaction histories and private message communications associated with Silk Road users. This information was collated, organized and, upon request, disseminated to members of the United States and international law enforcement community.
6. In response to such a request, the FBI disseminated documents to the Victoria Police containing information related to the Silk Road accounts identified as ‘OZHigh’, ‘umptydumpty’, and ‘HighTime’. This information was located during a forensic analysis of the server images made during the Silk Road investigation.
7. I have reviewed the information provided to the Victoria Police for OZHigh’, ‘umptydumpty’, and ‘HighTime’, attached as digital files on a compact disc labelled SDS-1, and the information listed in the files is consistent with information located on stored duplicate forensic copies of the Silk Road server(s) to which I have access.
[7]The affidavit does not make clear whether it was sworn or affirmed.
On 13 May 2021, Special Agent Shahrani, who was physically present in Virginia in the USA, gave affirmed evidence on voir dire via ‘Zoom’. He was examined and re-examined by the prosecutor, and cross-examined by the applicant’s counsel. The judge also asked a number of questions by way of clarification. In summary, Special Agent Shahrani gave the following evidence:
· the documents provided to Victoria Police on CD were ‘printed documents from the Silk Road servers’;
· the information stored on databases of the Silk Road servers is ‘not human readable’;
· a computer program was used to ‘parse’ the data, which involved looking through the data, reading it, producing images of it, and putting it ‘into a format that you and I could understand’;
· PDF documents were created so that the data extracted could be read;
· he did not create the PDF documents, they having been ‘created by somebody at FBI headquarters — probably the individuals listed at the top of the PDF file or a contractor that was working for them — but it was done at [his] request’;
· he repeated that he was not ‘the person that asked the computer to produce a document containing the materials that have been supplied to Victoria Police’, but rather had ‘sent a request to FBI Headquarters to the headquarters unit that control the [servers] at the time and asked them to generate this so somebody else actually ran the script itself’; and
· he did not see the script that generated the documents.
As we have said, Special Agent Shahrani gave evidence that a computer program was used to ‘parse’ the data on the Silk Road servers and put it into a ‘human readable’ form. He then gave the following evidence:
[HIS HONOUR}: Yes. When that had been done, were you able to compare the result or the product produced with what was found on the server?---Ah, I did, before we provided the documents on the CD, I did spot checks, so I basically — there’s I think a thousand or some pages worth of documentation in there, so we did spot checks; we randomly selected sections of tests of information and then compared that to records that were found in the database and found them to be the same information, obviously presented in a more readable, ah, format and - - -
Was it found to be accurate - - -?---Yes.
- - - was the collation found to be accurate?---Yes.
The prosecutor then took Special Agent Shahrani to paragraph 7 of his affidavit,[8] and elicited the following evidence:
[PROSECUTOR]: Does that paragraph explain there the process you undertook to review the PDF documents that were produced, and compare them to the raw data?---Yes, and as I said, because of the vast amount of data, we couldn’t go line by line and prepare everything, but we basically made random selections of sections throughout the document, went back and found that original data in the raw data, to prove that – basically verify that it was there, and we didn’t find any mismatches.
[8]See [16] above.
The submissions to the trial judge
Counsel for the applicant sought exclusion of the Silk Road material. Drawing the trial judge’s attention to ss 69, 146 and 147 of the Evidence Act 2008, she submitted that the relevant documents were not business records. Counsel also sought exclusion of the evidence derived from the servers in reliance upon s 25 of the Foreign Evidence Act1994 (Cth), submitting (among other things) that ‘we’re not in a position to test the accuracy of the information there, and the provenance of it’.
The prosecutor submitted that the evidence was admissible pursuant to s 48 of the Evidence Act 2008 (s 71 also supported its admissibility), and that the judge should not exclude it under s 25 of the Foreign Evidence Act1994 (Cth).
The ruling and certification decision
The judge considered the challenged evidence to be admissible by virtue of s 48 of the Evidence Act 2008. He said:
In my view, prima facie and subject again to the operation of s 25 of the Foreign Evidence Act, the evidence in the Silk Road material is admissible. It is a document for the purposes of s 48 of the Evidence Act and it is a document which in my view falls squarely into the operation of [subs] 1(b) and (d).
Further, the judge refused to exclude the evidence under s 25 of the Foreign Evidence Act1994 (Cth), or pursuant to any of the provisions contained in Part 3.11 of the Evidence Act 2008. He said:
[Defence counsel] submits that the exclusion of the material would not unfairly prejudice the prosecution, which could proceed anyway. That sub-section weighs in favour of exclusion of the material. However, on balance, in my view, the justice relating to the trial of the accused of the charges in this matter would be served by the evidence in the Silk Road material being admitted into the trial. Although it was not argued by [defence counsel], in my view, it is not necessary that I exclude the evidence on the basis of the discretionary and mandatory exclusion, set out in Part 3.11 of the Evidence Act 2008.
For these reasons, the Silk Road material will be admitted into evidence.
Later, refusing certification under s 295(3) of the CPA, the judge said:
I am in no doubt that the Silk Road material strengthens the prosecution case. It strengthens it because to a large extent, it corroborates the prosecution case. That is to say it corroborates material actually found either in the possession of the accused or on devices possessed by her. The prosecution submits that even if the Silk Road material were ruled inadmissible, it would still pursue the same case, absent that material, against the accused.
The question ultimately is whether or not, on an assessment of the Silk Road material, the Court should decide if its inadmissibility would eliminate or substantially weaken the prosecution case. I have no doubt that it would weaken the prosecution case if that material were ruled inadmissible, but it would not eliminate or substantially weaken the prosecution case in my view. I am not satisfied that the requirement for certification for an interlocutory appeal has been satisfied.
I therefore decline to certify my ruling of yesterday for interlocutory appeal.
The applicant’s submissions in this Court
In essence, counsel for the applicant submitted that, as appears from Special Agent Shahrani’s evidence on voir dire, the Silk Road material consists of purported extracts from the Silk Road servers in the custody of the FBI, which were originally maintained by the operator of Silk Road, Ross Ulbricht, and copied by the FBI. The material was produced by means of a software script which extracted relevant information from the servers and presented it in readable form in a PDF document. Importantly, however, Special Agent Shahrani did not personally carry out that process, nor identify the person who did. His role was limited to directing or requesting that the process be undertaken, and providing the product of that process to Victoria Police. The Silk Road material was hearsay as to the contents of the Silk Road servers, and as to the representations, allegedly made by the applicant and others, contained within it.[9]
[9]Counsel cited Davies v The Queen [2019] VSCA 66, [146] (‘Davies’) and R v Ryan [2002] VSCA 176.
Counsel for the applicant submitted that the trial judge erred in determining that the Silk Road material was admissible by reason of s 48 of the Evidence Act 2008 alone. Resort to s 48 could not resolve the essential problem associated with the hearsay quality of the Silk Road material. While s 48(1)(d) might have facilitated proof of the contents of the Silk Road servers, that provision did not itself make the Silk Road material admissible: it remained necessary to identify a provision in Part 3.2 of the Act which provided an exception to the hearsay rule in s 59. The Act draws a distinction between the manner of adducing evidence, with which s 48 is solely concerned, and the admissibility of evidence. Section 48 does not override the provisions in the Act concerned with the admissibility of evidence.
Further, counsel maintained the submission made to the trial judge that the judge should have declined to admit the evidence under s 25 of the Foreign Evidence Act 1994 (Cth), relying in particular upon the fact that the applicant is unable to test whether the Silk Road material is an accurate reflection of the contents of the Silk Road servers. Additionally, counsel argued that the inability to test the accuracy of the Silk Road material by reference to the source data on the Silk Road servers creates a substantial danger of unfair prejudice to the applicant which outweighs its probative value, such that the evidence must be excluded under s 137 of the Evidence Act 2008.
The respondent’s submissions in this Court
Counsel for the respondent contended that the contents of the documents derived from the Silk Road servers were not hearsay. Section 48 of the Evidence Act 2008 permitted their adduction in evidence.
When asked at the outset of the hearing in this Court, however, to ‘explain … how it is the Crown wants to use this Silk Road material’, counsel for the respondent submitted that entries in the Silk Road material
confirm that an order was made for a particular drug, either methylamphetamine or cocaine; the quantity of that drug; and the price paid for the drug; and also the receipt by the mail of that particular order and purchase of drugs.
Later, the respondent’s counsel agreed with the proposition that ‘the statements in the documents themselves prove that there were sales’ and also ‘the nature of the sales’. He submitted that the documents are ‘relevant to the sale of specific drugs to customers, whether it be methylamphetamine or cocaine’ and are proof of that because the documents show
that a particular Silk Road user, going by a particular name, confirms the order, purchase and delivery of a certain quantity of drug, which is in the material referred to as ‘ice, meth or shard’ in relation to methylamphetamine, and in relation to coke, it is referred in these feedback messages as ‘coke, cocaine, or Charlie’.
Notwithstanding these submissions, counsel for the respondent would not accept that the Silk Road material constituted documentary hearsay. And despite the fact that the trafficking charges on the indictment are put by the prosecution on a Giretti basis[10] — that is, that the applicant was in the business of selling illicit drugs — counsel for the respondent specifically eschewed reliance on the ‘business record’ exception to the hearsay rule found in s 69 of the Evidence Act 2008. When asked for the sake of argument to assume that the documents contained documentary hearsay, the respondent’s counsel could not point to any other exception to the hearsay rule which might support their admissibility.
[10]See R v Giretti (1986) 24 A Crim R 112.
Discussion
Section 48 of the Evidence Act 2008 — upon which the judge relied to admit the Silk Road material — provides a means for proving the contents of documents. It presupposes that the contents of the documents sought to be adduced are admissible. It does not render admissible the contents of documents which are otherwise inadmissible. It merely facilitates proof of the admissible contents of documents (the common law ‘best evidence’ rule having been abrogated by s 51). It did not permit the adduction of the contents of the Silk Road material — PDF documents generated from the data on the Silk Road servers — unless those contents were otherwise admissible. Insofar as the judge’s ruling proceeded on the basis that s 48 itself provided a distinct head of admissibility for the Silk Road material, it was in error.
In contending that the Silk Road material contains hearsay, the applicant’s counsel relied on s 59 of the Act, which, so far as relevant, is in the following terms:
59 The hearsay rule—exclusion of hearsay evidence
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2)Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Despite the submissions of the respondent’s counsel to the contrary, it is quite plain that the Silk Road material constitutes documentary hearsay. Thus, the prosecution seeks to rely on the contents of the relevant documents to prove, first, that orders were made by various individuals for the purchase of a particular drug (methylamphetamine or cocaine); secondly, the quantity of the drug purchased; thirdly, the price paid for the drug; and, fourthly, the fact that delivery of the drugs was made to the particular purchaser pursuant to the relevant order. The prosecution wishes to prove the existence of each of those four facts by relying on various representations[11] contained in the documents. In those circumstances, the representations are caught by s 59.
[11]The Dictionary defines representation to include ‘an express or implied representation (whether oral or in writing)’.
Since the contents of the Silk Road material offends the hearsay rule, it is inadmissible unless the prosecution can bring it within one of the exceptions to the hearsay rule. As we have said, counsel for the respondent specifically eschewed any reliance upon the business record exception found in s 69 of the Act, but could not point to any other exception to the hearsay rule which might support its admissibility.
In oral submissions, senior counsel for the applicant in this Court[12] relied substantially upon this Court’s decision in Davies to support the contention that the Silk Road material was inadmissible. In Davies, the applicant had been convicted of five counts of arson, one of the arson targets being the Mount Waverley Police Station. On the morning of 20 January 2011, the telecommunications junction box of the police station was damaged by fire, causing disruption of the telecommunications system. It was alleged that the applicant had set the fire. There was evidence to establish that the applicant’s vehicle had been stationary in a street close to the police station between 1.15 am and 1.24 am, before proceeding to the applicant’s premises, where it became stationary at 1.39 am. At trial, the prosecution introduced evidence from a Telstra Corporation employee, Adam Gelfe (a team manager at the Law Enforcement Liaison section), that was directed towards showing that at 1.35.03 in the morning on 20 January 2011 there was an interruption to telecommunications services to Mount Waverley Police Station.
[12]Neither he nor his junior were counsel who appeared before the trial judge.
Pre-empanelment, the trial judge in Davies made a ruling permitting Mr Gelfe to give evidence that he had perused records and documents maintained by Telstra and as a result was able to state that Telstra records showed that the managed data and voice services for Mount Waverley police station ceased at 1.35.03 am on 20 January 2011. The trial judge admitted the evidence pursuant to the business record exception to the hearsay rule in s 69 of the Evidence Act2008, which, where it applies, provides that the hearsay rule does not apply to the document in question. Section 48 of the Act then provides various ways in which evidence of the contents of a document may be adduced. Those ways do not, however, permit the oral recitation by a witness of the contents of the document.
It became clear that Mr Gelfe had emailed another person within Telstra to find out when the service to the police station had ceased and that he had received an email in response. Mr Gelfe gave evidence that he was the Telstra officer responsible for providing police with information they requested of Telstra. He confirmed that, when asked to provide information, he had somebody look it up on his behalf. Mr Gelfe said that he had been provided with information that ‘formed part of Telstra’s business records’. He said the business records showed that there was an interruption to services at the police station at 1.35.03 in the morning. Further, it emerged in cross-examination that Mr Gelfe had received an email from an unidentified person at a Telstra helpdesk which stated that the sender had spoken to yet another person, within Telstra’s IP solutions centre, who had specified the time when the services to the police station were interrupted. Mr Gelfe confirmed that he had not checked the original records to see what time they mentioned and could not give evidence beyond what was contained in the email. As this Court remarked, the ‘evidence of Mr Gelfe was therefore revealed as second-hand hearsay as to the contents of Telstra’s records’.[13]
[13]Davies, [146].
Having set out the provisions of s 69, this Court said:[14]
Even if the records to which Mr Gelfe referred in his evidence had been tendered, they would not have been admissible under this provision because Mr Gelfe was not able to give evidence that the document disclosing the loss of services at 1.35 am formed part of the records of Telstra. His only basis for that statement was that he had been told that another person had examined such records. He had not seen the document himself. Without having done so, he could not give evidence satisfying the requirements of s 69(1). Had he been able to give such evidence, s 69(2) would then have been satisfied if it could then be shown that the representation as to the time of interruption of services contained in the relevant document was made by a person with personal knowledge of that fact. However, the foundation for that inquiry was not established by Mr Gelfe’s evidence.
Nor could the email received by Mr Gelfe have satisfied s 69. Assuming that document formed part of the records kept by Telstra for the purposes of its business, and that it contained a representation supplied by a person with personal knowledge, within sub-s (2)(b), the email was, as the Crown properly conceded before us, made in connection with an investigation relating to a criminal proceeding within the meaning of s 69(3). It was therefore outside the scope of s 69.
[14]Ibid [148]–[149].
Counsel for the applicant submitted that Mr Gelfe’s evidence in Davies is ‘indistinguishable’ to that given by Special Agent Shahrani. There is no verification of the download of the relevant documents from the Silk Road servers. Special Agent Shahrani did not create the PDF documents. They were allegedly ‘created by somebody at FBI headquarters’ at Special Agent Shahrani’s ‘request’. That individual remains unidentified, and the process by which he or she created the documents remains unexplained. There is no evidence from any individual that he or she downloaded the particular documents in issue, or that the PDF documents are those that were allegedly downloaded. The ‘closest’ the evidence got to Special Agent Shahrani linking the PDF documents to what he had himself seen on the servers was his evidence that random ‘spot checks’ had been done and no ‘mismatches’ found. Adding to the generally unsatisfactory nature of the evidence, at one point Special Agent Shahrani said, ‘I did spot checks’, and at another, ‘we did spot checks’ and ‘we didn’t find any mismatches’,[15] leaving it uncertain as to whether he alone carried out the relevant spot checks or whether he and other unidentified individuals did so.
[15]See [18]-[19] above.
As we have indicated, we consider the contents of the Silk Road material to be hearsay. Thus, the only basis upon which the documents properly could be admitted into evidence over objection is if an exception to the hearsay rule were engaged. One possible exception — one that it is unequivocally renounced by the respondent — is the business record exception. Possible reliance on that exception, however, presently faces the formidable obstacle that Special Agent Shahrani’s evidence that the PDF documents were created from the Silk Road servers is itself hearsay, being based on information he was given by others.
For these reasons, the Silk Road material was inadmissible. The judge erred in holding that s 48 authorised its admission into evidence.
Given the foregoing, it is unnecessary to say much about the applicant’s contention that the judge should have excluded the Silk Road material under s 25 of the Foreign Evidence Act 1994 (Cth).
Section 3(1) of that Act defines foreign material to include the testimony of a person that was obtained as a result of a request of a kind referred to in s 21, and complies with the requirements of s 22. Those sections are in the following terms:
21 Requests for foreign material
This Part applies to testimony, and any exhibit annexed to such testimony, obtained as a result of a request made by or on behalf of the Attorney‑General to a foreign country for the testimony of a person, and any exhibit annexed to such testimony, to be made available.
22 Requirements for testimony
(1) The testimony must have been taken:
(a)on oath or affirmation; or
(aa)under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or
(b)under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.
(2) The testimony must purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made.
And s 25 provides:
25 Discretion to prevent foreign material being adduced—general
(1) The court may direct that foreign material not be adduced as evidence if it appears to the court’s satisfaction that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced as evidence.
(2) Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account:
(a)the extent to which the foreign material provides evidence that would not otherwise be available; and
(b)the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and
(c)the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and
(d)whether exclusion of the foreign material would cause undue expense or delay; and
(e)whether exclusion of the foreign material would unfairly prejudice any party to the proceeding.
In our view, Special Agent Shahrani’s evidence — given in the County Court via a Zoom link — was not ‘foreign material’. To constitute ‘foreign material’, the relevant testimony ‘must purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made’. Whatever the status of Special Agent Shahrani’s affidavit and statement might have been prior to giving evidence in the County Court, it could not be said that the affirmed evidence he gave on voir dire before the trial judge constituted ‘foreign material’ within the meaning of the Foreign Evidence Act 1994 (Cth). Hence, s 25 was not engaged.
Although (notwithstanding that it was not the subject of the ground) the applicant’s counsel submitted that the Silk Road material fell to be excluded under s 137 of the Evidence Act 2008, in circumstances in which the evidence simply is inadmissible, it is unnecessary to further examine that issue.
Conclusion
For the foregoing reasons, the certification decision and the interlocutory decision must be set aside.
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