Younan v Director of Public Prosecutions

[2012] NSWDC 264

District Court

New South Wales

Medium Neutral Citation:	Younan v Director of Public Prosecutions [2012] NSWDC 264
Hearing dates:	5 October 2012
Decision date:	05 October 2012
Before:	Nicholson SC DCJ
Decision:	The appellant's application is rejected
Catchwords:	CRIMINAL LAW - Interlocutory judgment - District Court appeal - Evidence - Admission of documents - Computer printouts of sales transactions - Information stored in data base - document copies made by witness - Witness capable of authenticating documents tendered.
Legislation Cited:	Evidence Act 1995
Cases Cited:	Campbell v Hitchcock [2003] NSWIR Comm 148 (3 June 2003) at [153-154] NSW Crime Commission v Rinh [2003] NSWSC 14 NAB v Rusu [1999] NSWSC 539 ASIC v Rich [2005] NSWSC 149 DPP v Koopelian [2012] NSWSC 309
Category:	Principal judgment
Parties:	Raymond Younan v Director of Public Prosecutions
Representation:	Director of Public Prosecutions
File Number(s):	2010/131655

Judgment

1. The concept of what constitutes a document, and its capacity to play a relevant part in litigation by and large is governed by the Evidence Act 1995. Documents these days, to use an inexact cliché, "come in all shapes and sizes". A document can contain visual images and aural content, such as a video recorded interview; it may constitute a printout from a computer data base; diagrams and plans, or simply hand writing such as found in a last will and testament. Significantly, the source of a document and its content may well determine how its potential for relevant contribution to the evidence is to be assessed, thereby determining the ultimate question - "Does the document have any capacity to play a relevant part in the litigation?"

1. In the Local Court conviction appeal before me, the appellant, Raymond Younan objects to the Director of Public Prosecutions (respondent), through his solicitor, calling fresh evidence, much of it relating to documents sourced from Caltex service stations. Resolving that objection requires the Court to determine with some precision the nature of the documents sought to be tendered, and whether, bearing in mind the nature of the documents, they have any capacity to play a relevant part in the litigation of this appeal.

1. The appellant, Raymond Younan was found guilty by Magistrate Maloney on the 2nd February 2011 of 24 counts of obtaining a benefit by deception. The deception in each case was identified by the learned Magistrate as the appellant's use of a Caltex card for his own purposes at the same Caltex service station on 24 discreet occasions, all the time knowing that he was not entitled to use the card for such a purpose. The benefit arising from the 24 transactions proved against the appellant amounted to $31,154. As best I can tell from reading His Honour's remarks leading to verdict, the then focus of the appellant's case centred upon claimed problems arising from identification of images on CCTV camera footage.

1. Mr Provera, counsel appearing on the appeal, was also counsel appearing before the learned Magistrate in the Court below. The appeal, to the extent in has been advance thus far, appears to hinge on a far more esoteric point, not taken in the Court below. Leave has been given by Chief Judge Blanch to the prosecution to adduce further evidence, firstly as to the ownership of product being sold at Caltex Service Stations, and in particular at the relevant Caltex service station, where discounts provided by Woolworths are available. As events turned out, it would seem the prosecution had alleged, and the parties assumed in the Local Court that Caltex was the owner of all products sold at service stations bearing the Caltex label.

1. Mr Freeman's, the National Loss Prevention Manager for Woolworths Limited Petrol Division, and harbinger of the opposed evidence. On the voir dire his evidence is that insofar as the provision of petrol to service centres where Caltex and Woolworths appear to have a relationship, Caltex refines the fuel products, Woolworths purchases the refined product from Caltex and is permitted to use the Caltex name at its petrol sites solely as a marketing ploy to let customers know they are buying a quality product. However, Mr Freeman deposed, Caltex do not own anything, including non-fuel items, within the Woolworth's petrol sites.

1. The Cross-examiner focused upon the ownership of the StarCard`, which I have assumed is the same as the "Caltex" card earlier referred to. Mr Freeman referred to it as "a Caltex run credit card, so to speak." When asked, " Who owned the terminals for the StarCard system?" Mr Freeman's response was that he had a "feeling - an understanding, they're ours. Anything in that site was ours. We had to purchase that and the software." He conceded he was not 100% sure but was 99% sure the terminals were Woolworths.

1. Mr Freeman explained purchases paid for with the StarCard ran through both the shop's till and the StarCard terminal. Indeed it didn't go through the till completely until it had gone through the terminal to StarCard for approval first, "So it's virtually one and the same."

1. However, it seems StarCard may have specifications limiting certain kinds of transactions. These specifications may relate to the limiting authorization for a specific type or any type of fuel purchased on the card; whether non-fuel products are or are not available to be purchased on the card; were two examples given. It would seem the scope of authorization permitted by the card, while being contained on the magnet strip of the card was not transferred to any Woolworth's kept record of the transaction. It would seem such information was retained only within the records of StarCard. But, as I understand his evidence, Woolworths kept within its computer data bases POS[point of sales] records of the use of the StarCard in relation to purchases made with it.

1. Mr Freeman's evidence was these all came back, Australia-wide, through his office. He ran certain filters through every transaction that occurred at the Woolworth sites, Australia-wide, and it printed out exception reports daily, weekly, fortnightly, and monthly depending on what type of transactions he was looking at.

1. At the Crown's request he identified a number of documents which he described as "point of sale information". The documents he was shown he said were ones printed from a secure database from his office desk relating to certain transactions from a particular site. As to that secure database from his desk office, only three people had access to it - the National Operations Manager, the General Manager and himself. The parties appear to agree, this evidence means no more than, those three persons have access to the database when at this location. Freeman conceded as much when he said the only other persons he was aware of that could have access to the information contained in the data base were IT people.

1. His evidence was the documents were automatically generated through Woolworths' Postec system, our point of sale system. He agreed he was responsible for the printout of the documents. His evidence was:

I had to print them - when they go onto the database I've actually got to what they call recall the information back, so it comes from the database, loads onto my computer and then I view them back and print them from that. They go into a data warehouse and I bring them back.

1. In the course of his work he accesses CCTV material from various sites. In some sites a newer system of accessing CCTV images has been installed, which permits him to view CCTV images from his desk top. The older system, which may has some relevance in this voir dire requires his attendance at the relevant service station site for viewing purposes. The CCTV footage, which the respondent seeks to tender, had to be accessed at the actual site to review the footage. He had attended that site (Bass Hill) on two occasions.

1. He conceded that he sometimes delegated reviewing footage at service station sites to "our petrol specialists if they were capable of doing that procedure" but 90% of the time he did it himself to maintain the integrity of the machine. He had made the copies of the CCTV images he had been shown before, which I understand were to be presented to the Court.

1. As I noted at the outset both the Postec system printouts and the CCTV material sought to be tendered by the Respondent are being tendered as documents as understood within the context of the Evidence Act 1995 (the Act).

1. The Dictionary to the Act defines document to mean any record of information and includes:

a) anything on which there is writing; or

b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else;

d) a map, plan drawing or photograph.

1. While the printout documents in question have not been tendered but have been marked MFI 1, it is safe to make a number of assumptions about them. If any of the assumptions are incorrect, and upon that basis likely to result in a flawed reasoning process the parties are at liberty to tender the documents for the purpose of exposing the error in assumption and its impact upon the reasoning process.

1. The evidence, as I already noted discloses Mr Freeman personally retrieved documents that contained point of sale information. From the evidence and conduct of the voir dire proceedings I have assumed:

• The point of sale designated in the documents is the "Bass Hill Caltex Service Station" - or some combination of those words.
• The documents were printed from a secure database from his office desk by him or some person at his direction.
• The documents are said on the Respondent's case to relate to alleged purchases of petrol by the Appellant that are said to relate to the convictions subject to appeal before me; that is to say the documents produced were subject to targeted searches from information supplied by the Respondent and/or police to the office of the National Loss Prevention Officer for Woolworths.
• On the Respondent's case the documents are said to have relevance to some or all of the discreet purchases that are the subject of appeal.
• The documents have been, or are purported to have been, retrieved from an electronically encoded database, housed in a computer system under the control and direction of Woolworths.
• The encoded material when retrieved appeared in printed form on a document in letters of the alphabet and numbers arranged in such a manner that words, abbreviations, symbols and figures were formed that could be read and understood by persons literate in English and with some level of numeracy.
• The encoded material from which the retrieved documents came, on the Respondent's case, was said to have been created initially at the point of sale on dates and times said to have been printed on the various documents.

1. Let me stress again, these are assumptions I have made; they do not constitute findings. The DDP Solicitor representing the Respondent, Ms Blizard, sought to describe the documents to me. I declined to take evidence from the bar table, anticipating, incorrectly as it turns out, the documents ultimately would be tendered on the voir dire.

1. I turn now to Mr Provera's submissions on behalf of the Appellant. Firstly, he seeks, in the light of the evidence before me, to revisit the decision of the Chief Judge to permit the prosecution to call Mr Freeman, in circumstances where it did not do so at the trial before the Local Court. I will return to that issue shortly.

1. Mr Provera submits the documents are hearsay documents, by virtue of their being business records. He argues the Respondent is forced to rely upon s. 69 of the Act. That in turn, he argues brings into play ss.170 -173 of the Act. The argument is that only persons who fit the requirements imposed by s.171 can authenticate business documents. That is to say, in the circumstances of this case, only persons who at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document.

1. Accepting, only for the purpose of dealing with this argument the documents sought to be tendered against the Appellant are in fact business records, those documents were made in Mr Freeman's office by him or at his direction. They were, in effect, made by his command to a computer to print out a designated selection of encoded material from the encoded database, into documentary form, with the intention of capturing information sought during the course of a police investigation or a requisition from the Respondent. Mr Freeman is capable of authenticating the documents.

1. Ms Blizard submitted each document did not constitute a business record, but rather should be regarded as "real" evidence. If this were so, then s.69 of the Act would not apply, because the document would not be hearsay in content. She relies upon the reasoning of Walton J, Vice President of the Industrial Relations Commission in Cambell v Hitchcock [2003] NSWIR Comm 148 (3 June 2003) at [153 -154].

153 Wright J concluded his reasoning on this aspect of the judgment by quoting a passage from the headnote in R v Wood (1982) 76 Cr App R 23 (CCA) which I consider entirely applicable to the instant proceedings:

Where a computer is used as a calculator and its programming and use are both covered by oral evidence, the print-out produced is not hearsay evidence. Computer print-out is not a statement made by a witness but should more properly be treated as a piece of real evidence, the actual proof and relevance of which depends upon the testimony of a witness.

154. The hearsay rule does not apply to the exhibits sought to be tendered in this trial, and as such the exception to the hearsay rule in s. 69 does not arise.

1. Even if the hearsay rule does not apply to the content of the documents, s. 170 identifies proof of the contents of the document needs to be authenticated. Again the maker of the document can establish that authentication. On the Respondent's case as I understand it the maker of the document was Mr Freeman.

1. Mr Provera has raised in argument the possibility of human error in the creation of the encoded material generated when non-fuel purchases are made at the service counter. While many non-fuel purchases might have contained upon them a bar-code which responds to an electronic impulse, other non-fuel purchases may not have bar code, say pieces of fruit. Hidden J, in NSW Crime Commission v Rinh [2003] NSWSC 14 distinguished between authentication and accuracy. Of this distinction, Austin J in ASIC v Rich [2005] 149 said:

118 Hidden J's reasoning in Rinh, distinguishing between authenticity and accuracy, identifies part of a wider distinction, between matters of authenticity going to the adducing of evidence, and matters going to the credibility and weight of documentary evidence once it has been authenticated and judged admissible. Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves. As I shall explain, some of the defendants' criticisms of the tendered documents, made under the rubric of authentication, are better seen, upon analysis, as going to credibility and weight.

1. I should note I have not entered into the debate raised by the decisions in NAB v Rusu [1999] NSWSC 539, Rinh (ante); Campbell v Hitchcock (ante), ASIC v Rich (ante) and DPP v Koopelian (2012) NSWSC 309. I have been fortunate enough to be able to resolve the matter by confining myself to the submissions of each party. There has been no suggestion that Mr Freeman should place his intended evidence upon affidavit.

1. As presently advised, and subject to determining adversely to him his application to revisit the Chief Judge's ruling, I am proposing to reject Mr Provera's arguments and permit proof of authenticity of the documents (MFI 1) to be given by Mr Freeman.

The CCTV document

1. In answer to a question by me, Mr Freeman indicated he was the person who made the CCTV copies (MFI 2) - assuming the relevant CCTV copies are ones shown to him. He had been out to the Bass Hill site on two occasions. He was asked in cross-examination whether he had any responsibility making the documents stored at the service station. He agreed he had not. He was asked whether he had any responsibility keeping these documents - he agreed he had not. Mr Provera's questions focus upon documents that play no physical part in these proceedings.

1. No attempt has been made to tender the documents stored at the service station. Those documents (CCTV images) are not before the court. There is no need to authenticate them. The documents (CCTV images) before the court are the copies made by Mr Freeman. It is those documents that must find authentication before they become admissible. I am satisfied on the evidence before me those latter documents can be authenticated as copies of the documents kept at the service station.

1. As presently advised, and subject to determining adversely to him his application to revisit the Chief Judge's ruling, I am proposing to reject Mr Provera's arguments and permit proof of authenticity of the CCTV documents (MFI 2) to be given by Mr Freeman.

Mr Freeman's Evidence and the interests of justice

1. Mr Provera's argument is that no application for adjournment was sought by the prosecution in the court below to permit them to obtain evidence from Mr Freeman - who apparently was unavailable at the time. Likewise no application was made to have Mr Freeman declared unavailable and read his statement. I have not reviewed in detail the Local Court transcript. I have reviewed His Honour's reasons for verdict. As I earlier noted the authenticity of the documents did not appear to be a feature of the case as it was presented in the Local Court.

1. An accused person is entitled to take every advantage open to him, even if it presents as a technical one. That this aspect was not ventilated in the Local Court does not bar the Appellant from raising it in his District Court appeal. But if it is to be raised the interest of justice require that the Respondent be permitted to address the issue with evidence that was apparently unnecessary to call at the Local Court. It then becomes a question for the tribunal rehearing the matter supplemented by fresh evidence, no doubt tested in the appeal proper, to determine whether the weight and reliability of the documents is impugned at all, or to such an extent that the verdicts entered in the Local Court can no longer survive.

1. For these reasons I am not prepared to revisit the decision of the Chief Judge, assuming, for the purposes of resolving Mr Provera's argument, I had jurisdiction to do so.

Formal Orders

1. The Appellant's application to reject Mr Freeman's evidence in respect of documents constituting MFI 1 is rejected.

1. The Appellant's application to reject Mr Freeman's evidence in respect of documents constituting MFI 2 is rejected.

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Decision last updated: 11 March 2013