Osborn v Community Probation Service HC Christchurch CRI 2010-409-90

[2010] NZHC 1551

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000090

CRAIG CONWAY OSBORN

Appellant

v

COMMUNITY PROBATION SERVICE

Respondent

Hearing:         1 July 2010

Counsel:         R Maze for Appellant

L C Preston for Respondent

Judgment:      2 September 2010

JUDGMENT OF PANCKHURST J

Introduction

[1]      The appellant was convicted upon a charge of failing to report to a Probation Officer for the purposes of performing community work, contrary to s59(b) and s71(1) of the Sentencing Act 2002.   This appeal against conviction is based on a single ground, namely that no admissible evidence was adduced by the informant to establish that the appellant failed to report on 1 December 2009, the date alleged in

the charge.

CRAIG CONWAY OSBORN V COMMUNITY PROBATION SERVICE HC CHCH CRI-2010-409-000090  2

September 2010

[2]      The appeal was first called before me on 1 July 2010.  Belatedly, I drew to counsel’s attention the Court of Appeal’s decision in R v Morris.[1]   That case featured evidence given by a witness concerning the absence of a relevant entry in a computer record and, in particular, whether evidence of such absence raised hearsay implications.   Reference to Morris resulted in the need for further submissions. These were filed in writing, which has in turn occasioned the delay between the

hearing and the delivery of this judgment.

The factual background

[1] R v Morris CA405/05, 3 October 2006.

[3]      In September 2009 Mr Osborn was sentenced to 200 hours community work. As required, he reported to the community work centre on 5 October 2009 and was inducted by Malcolm Twaddel, the probation officer responsible for the management of offenders at the centre.   Mr Osborn informed Mr Twaddel that he intended to appeal against the sentence of community work.  He was told by Mr Twaddel that if a notice of appeal was filed service of community work would be suspended, but in the meantime he was required to report on a weekly basis.  Mr Twaddel, the only witness for the prosecution at the District Court hearing, also gave evidence that Mr Osborn did not report again after 5 October.

[4]      He was charged with failing to report on 1 December 2009, being one of the weekly reporting dates.

The District Court hearing

[5]      After giving evidence of the community work sentence and concerning the induction process on 5 October, Mr Twaddel then explained that he had recently checked the work centre computer and found that there was no entry confirming that an  appeal  against  sentence  had  been  lodged,  nor any entry confirming that  the appellant had attended at the work centre on any occasion after 5 October.

[6]      Objection was taken to this evidence on the basis that it was inadmissible hearsay.  The appellant, after 5 October, was not required to report to Mr Twaddel

but rather to another officer at the work centre.  And, computer entries confirming attendance or not were made by that officer.

[7]      Cross-examined as to this aspect, Mr Twaddel accepted that his “knowledge [was] based entirely upon the computer record”.  He referred to the computer record as a business record belonging to the Probation Service.   However, the computer record was not produced in evidence.

[8]      In response to a no case submission at the conclusion of the informant’s evidence, Judge Bisphan found that there was a prima facie case.  He said:

Mr Maze submits that Mr Twaddel is basing his assessment of the position on hearsay, although that is somewhat hard to follow because there is no record at all.

Despite this finding, the appellant elected not to give evidence.

[9]      The Judge then said this:

I take the view that I have found that there is a prima facie case.   The defendant has elected not to give evidence.  He has got no obligation to, but he has not given evidence that he did in fact appeal or that he had any reasonable excuse, so I find the charge proved beyond doubt and the defendant will be convicted.

Grounds of appeal

[10]     Mr Maze submitted that Mr Twaddel’s evidence of no entry having been made in the computer record as to the appellant’s attendance at the work centre comprised a hearsay statement to that effect.   And, the argument continued, there was no basis in the Evidence Act 2006 (the Act) to receive such evidence, whether under  s18  (the  general  admissibility of  hearsay  provision)  or  s19  (the  business records exception).

[11]     Mrs Preston submitted:

(a)that the computer records are a business record as defined in s16(1) of the Act,

(b)that the person who compiled the business record could not reasonably be   expected   to   recollect   matters   entered   into   the   record   and, accordingly,  no  useful  purpose  would  be  served  by  requiring  that person to be a witness (s19(1)(b)),

(c)the requirements of s22 as to the provision of notice and of a copy of the  business  record  should  be  dispensed  with  pursuant  to  s22(5), because given the nature of the computer record the appellant was not substantially prejudiced by the failure to comply with the procedural requirements, and

(d)in the alternative, that Mr Twaddel’s evidence was not hearsay, but rather that the absence of an entry in the computer record gave rise to an implied assertion (as opposed to a hearsay statement), and such assertion was circumstantial evidence on which the respondent could rely in support of its case.

[12]     It is convenient to consider the alternative argument first.

Was Mr Twaddel’s evidence an implied assertion, or a hearsay statement?

[13]     The Court of Appeal decision in R v Morris [2]  is relevant to whether the absence of an entry in a continuous record is hearsay evidence or not.   The Court referred to various cases, including R v Patel [3], R v Gould [4]  and Commissioner for Motor Transport v Collier-Moat [5]  in relation to the search of a record system and subsequent evidence as to the absence of a relevant entry.  The Court continued:

[40]     In our opinion, the Canadian and Australian approach is the correct one.   It is as much hearsay evidence to say that a certain piece of information was not in a set of records, as to say it was.   It implies a negative statement by the person who made the record and that person is not giving evidence.   The Crown’s argument that the evidence here is circumstantial does not assist.  The rule against hearsay evidence applies to all evidence, circumstantial and direct. (emphasis added)

[2] R v Morris CA405/05, 3 October 2006.

[3] R v Patel [1981] 3 All ER 94.

[4] R v Gould (1990) 78 Cr (3d) 151 (Canada).

[5] Commissioner for Motor Transport v Collier-Moat (1960) 60 SR (NSW) 238 (FC).

[14]     Mrs Preston accepted that Morris was relevant and binding in the present context.   However, she noted that it was decided prior to the enactment of the Evidence  Act  in  late  2006,  and  drew  attention  to  the  definitions  in  s4(1),  in particular:

statement means –

(a)     a spoken or written assertion by a person of any matter;

or

(b)non-verbal conduct of a person that is intended by that person as an assertion of any matter

hearsay statement means a statement that –

(a)     was made by a person other than a witness; and

(b)is  offered  in  evidence  at  the  proceeding  to  prove  the  truth  of  its contents

[15]     The Evidence Act does not mention implied assertions.   In R v Holtham,[6]

Simon France J held that the essence of a statement in the Act is an intention to assert (at [45]).   Implied assertions do not contain an intention to assert, are not statements and are not, therefore, caught by the hearsay rule.  The Judge added with regard to implied assertions:

Rather, they are items of circumstantial evidence from which one can draw such inferences as are appropriate.  (Para [22]).

[6] R v Holtham [2008] 2 NZLR 758 (HC).

[16]     Holtham concerned text messages to the accused’s cellphone.   The Crown asserted  that  the  messages  were  requests  for  the  supply  of  drugs  –  although expressed in code.  Hence, it was argued, where there was a series of such messages, their existence on a cellphone belonging to the accused supported the inference (or implied assertion) that he was a drug dealer, albeit the persons who sent the text messages were not called as witnesses.

[17]     In considering the probative value of the text messages, and more particularly whether their value was outweighed by the risk that they may have an unfairly prejudicial effect in the proceeding, Simon France J said this:

[29]    ...  In terms of the usual hearsay risks, the unanswered texts have two advantages.   Like  all  written  hearsay,  the  chance  of  misreporting  is

diminished because the actual original statement is available.  Secondly, one need not usually have concerns about the sincerity of the maker of the statement because they had no intention to assert anything.  That does not mean they may not be mistaken.  However, from a reliability viewpoint, one has the exact wording of a circumstantial act in circumstances where the person requesting had no wider motive or interest at all.

[30]    Further, in my view, it is impossible to ignore the increased reliability that can flow from the greater number of differently sourced requests.

For these reasons the probative value of the text messages was upheld.

[18]     Although I agree with the analysis in Holtham, I do not find it of application in the present case.  Had the appellant attended the work centre on any given day the computer operator would have made an entry in the computer record confirming his attendance.   This entry, or statement, if given in evidence would be proffered to prove the truth of its contents.  Equally, in my view, evidence as to the absence of an entry confirming attendance on a particular day is a statement within the Act.  By giving evidence of the absence the witness intends to assert that the appellant did not attend on that particular day.   If proffered in evidence by someone other than the person responsible for making or recording that statement, it is hearsay.  Hence, the observation in Morris that “it is as much hearsay evidence to say that a certain piece of information was not in a set of records, as to say it was” remains apposite since the passing of the new Act.

[19]     It follows that I do not accept that the absence of an entry in the computer record gives rise to an implied assertion.   As the facts in Holtham demonstrate, words can imply something over and above their literal meaning.  But in order for those words to be a statement within the Act, that implication must have been intended by the person using those words.  This was not the case in Holtham where the text messages remained implied assertions.  Here, by contrast, the absence of an entry in  the  computer  record  was  intended  to  assert  that  the  appellant  had  not attended the work centre on that day.  No question of an implied assertion arises.

[20]     There is another problem.  As the decision in Holtham confirms, the actual original statements (i.e. text messages) were available and offered in evidence.  That position does not obtain in this case.  No computer record, relevant to the appellant,

was produced in evidence.   Hence, there was no original evidence from which to derive an implied assertion in any event.

Is Mr Twaddel’s statement admissible hearsay evidence?

[21]     I accept Mrs Preston’s submission that the computer attendance record is a business record as defined in s16(1) of the Act.   Accordingly, subject to the procedural requirements, the computer record was admissible if its maker was unavailable as a witness, could not reasonably be expected to recall the inputs or if undue expense or delay would be caused by requiring that person to appear as a witness: s19(1) (a), (b) and (c).

[22]     I  am  also  prepared  to  assume  that  if  application  had  been  made  Judge Bisphan may well have found that no useful purpose would be served by requiring the record-maker to be a witness, given the unlikelihood that he/she would have a personal recollection of a routine event which occurred on 1 December 2009.

[23]     But, in a criminal proceeding the admissibility of a hearsay statement is subject  to  the  requirements  in  s22.    Notice  of  the  proposer’s  intention  to  offer hearsay evidence via the computer record, the name of the maker of the record and warning of the intention to rely on the “no useful purpose” criteria must be given: s22(2) (a) and (b).   In addition, s22(3) requires that a copy of the document comprising the business record must accompany the notice.   These requirements were not met in this instance.

[24]     However,  a  Judge  may  excuse  non-compliance  with  these  requirements pursuant to s22(5) if (a) there is no substantial prejudice, or (b) compliance is not reasonably practicable, or (c) the interests of justice so require.   Mrs Preston submitted that there was no substantial prejudice in this case.  Mr Twaddel’s brief of evidence was disclosed in a timely manner.  And, the argument continued, given that the operative point is the absence of any entry there was no potential for accuracy to be  challenged;  and  Mr Twaddel  was  familiar  with  the  computer  record  so  that defence counsel had an opportunity to cross-examine upon the compilation of the record.

[25]     I do not accept this submission.  This is a case of wholesale default, no doubt on  account  of  a  failure  to  see  the  hearsay  implications  of  the  evidence.    Had Mr Twaddel produced a copy of the relevant part of the computer record, there might be some basis to consider an argument based on s22(5).  But that is not the case.

[26]     For these reasons I find that there is no admissible evidence which establishes non-attendance at the work centre by the appellant on 1 December 2009.   In this event Mrs Preston submitted that the appropriate course was to receive further evidence on appeal, or remit the case back to the District Court for rehearing, so that the evidential deficiency may be remedied.

[27]     I do not accept either contention.  There was an onus upon the informant to establish its case in the District Court.  It has not done so.  In all the circumstances I do not regard this as a situation where a further opportunity to repair the breach is appropriate.  In part, I am influenced by the circumstance that the appellant remains subject to the community work sentence – albeit he has possibly escaped conviction for a breach of the sentence.

Result

[28]     The appeal is allowed.  The conviction is quashed.

Solicitors:

Richard Maze Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent