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Supreme Court 8 October 2004

Roads and Traffic Authority of New South Wales v Tetley

[2004] NSWSC 925

Traffic & driving
EVIDENCE WHETHER COMPUTER APPEALS

Citation: Roads and Traffic Authority of New South Wales v Tetley [2004] NSWSC 925
Court: Supreme Court of New South Wales, Common Law Division
Date: 8 October 2004
Judge(s): Windeyer J

Background

The respondent was a driver employed by an ACT-based transport company and operated an ACT-registered heavy vehicle. He faced 13 charges in the Local Court at Queanbeyan alleging that he had made false entries in his driving logbook during March 2003, in breach of the driver fatigue regulations under the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulations 1999.

The charges arose from an RTA audit of the employer. Pursuant to a Notice to Produce, the RTA obtained two categories of documents: duplicate pages from the respondent's driving logbook (kept by the employer) and an 11-page GPS-based computer printout called the "Carkeet Transport Journey Report." The RTA's case was that the Journey Report recorded vehicle locations inconsistent with those shown in the logbook duplicates, thereby demonstrating the falsity of the entries.

The Magistrate ruled both categories of documents inadmissible. The logbook duplicates were excluded on the basis that they formed part of a Vehicle Movement Record (VMR), which is generally inadmissible in criminal proceedings under the Road Transport (Safety and Traffic Management) Act 1999. The Journey Report was excluded as irrelevant. With no evidence to support the prosecution, the charges were dismissed. The RTA appealed to the Supreme Court.

  • Whether the logbook duplicates, once removed from the logbook and retained by the employer, became part of a VMR and were therefore inadmissible in criminal proceedings under s 69 of the Road Transport (Safety and Traffic Management) Act 1999.
  • Whether the logbook duplicates were independently admissible as business records under s 69 of the Evidence Act 1995.
  • Whether the Journey Report (a GPS-generated computer printout) was relevant and admissible under ss 69, 146 or 147 of the Evidence Act 1995.
  • Whether the respondent, as driver of an ACT-registered vehicle, was under any obligation to maintain a VMR, and whether that obligation bore on admissibility.
  • Whether the Journey Report could itself constitute a VMR (or part of one), rendering it inadmissible under the road transport legislation.
  • Whether the reasoning in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd prevented examination of a document under s 183 of the Evidence Act when an objection to admissibility had been raised.

Decision

On the logbook duplicates and VMR classification: Windeyer J found that the Magistrate's conclusion, that the duplicates became part of a VMR upon removal from the logbook and retention by the employer, was not supported by the evidence. A VMR under s 59 of the Road Transport (Safety and Traffic Management) Act 1999 requires both manual data and corresponding automatic data produced by a monitoring device. The logbook duplicates alone did not satisfy that composite definition.

On the obligation to maintain a VMR: The court noted that the relevant regulations specifically exempted vehicles registered outside New South Wales, including ACT-registered vehicles. Accordingly, the respondent was under no legal obligation to maintain a VMR in relation to the vehicle in question. While this did not foreclose the possibility that a VMR could have been voluntarily created for such a vehicle, the exemption supported the conclusion that the duplicates were not properly characterised as part of a VMR.

On the Journey Report: The court accepted that the Journey Report did not meet the definition of "automatic data" required for a VMR under s 59, notably because it did not record vehicle speeds. Combined with the vehicle's exemption from the VMR regime and Mrs Carkeet's evidence that the system was used only to locate vehicles when problems arose, the evidence did not compel a conclusion that the Journey Report was part of a VMR. The Magistrate had made no express finding on this question, and the Supreme Court declined to resolve it finally on appeal, noting that was not appropriate unless the result was certain.

Overall outcome: Because both evidentiary rulings by the Magistrate were not supportable on the evidence and reasoning applied, Windeyer J allowed the appeal, set aside the admissibility decisions, and remitted the matter to the Magistrate to be determined according to law.

Orders Made

  • Appeal allowed.
  • Matter remitted to the Magistrate to be dealt with according to law.
  • The defendant (respondent) ordered to pay the plaintiff's costs of the summons.
  • The defendant granted a certificate under the Suitors Fund Act.

Key Takeaways

  • A document does not become a Vehicle Movement Record merely by being a logbook duplicate retained by an employer. Under s 59 of the Road Transport (Safety and Traffic Management) Act 1999, a VMR requires both manual data and corresponding automatic data from a monitoring device; a duplicate logbook page standing alone does not satisfy that composite definition.

  • The exemption in the road transport regulations for vehicles registered outside New South Wales (including ACT-registered vehicles) meant the respondent carried no legal obligation to maintain a VMR, a factor that weighed against classifying the relevant documents as part of one.

  • A GPS-generated Journey Report that does not record vehicle speed may fall outside the statutory definition of "automatic data" in s 59, and therefore outside the VMR regime, even if it records other vehicle movement information.

  • Where a Magistrate rules documents inadmissible on a characterisation unsupported by the evidence, the Supreme Court on appeal can set aside that ruling and remit the matter, though the appellate court will not itself resolve contested factual questions unless the outcome is certain.

  • Windeyer J did not treat Ocean Marine Mutual Insurance as authority preventing any examination of a disputed document under s 183 of the Evidence Act when an admissibility objection had been raised, a point relevant to how courts approach preliminary examination of contested records in criminal proceedings.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 49, 69, 146, 147, 183
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 59, 63, 69
- Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulations 1999 (NSW), cls 47, 49, 58, 60, 61, 69, 79
- Road Transport (General) Act 1999 (NSW)
- Road Transport (Vehicle Registration) Regulation 1998 (NSW)
- Traffic Act 1909 (NSW), s 10O, Part 3A
- Motor Traffic Regulations 1935 (NSW), cl 126N

Cases:
- Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146
- Campbell v Hitchcock [2003] NSWIRComm 148