Citation: Younan v Director of Public Prosecutions [2012] NSWDC 264
Court: District Court of New South Wales
Date: 5 October 2012
Judge: Nicholson SC DCJ
Background
The appellant had been convicted in the Local Court of 24 counts of obtaining a benefit by deception. The convictions arose from his use of a Caltex (StarCard) fuel card at a Bass Hill service station on 24 separate occasions, when he was not authorised to do so. The total benefit obtained across those transactions was approximately $31,154.
On appeal to the District Court, a new evidentiary issue arose that had not been ventilated below: whether the prosecution could properly call fresh evidence from Mr Freeman, the National Loss Prevention Manager for Woolworths Limited Petrol Division. Chief Judge Blanch had already granted leave to the prosecution to adduce this further evidence, and the appeal also raised questions about the ownership of products sold at Woolworths-operated Caltex sites.
Mr Freeman sought to tender two categories of documents: point-of-sale (POS) transaction printouts drawn from a secure Woolworths database (MFI 1), and copies of CCTV footage from the Bass Hill site (MFI 2). The appellant objected to both, and the court held a voir dire (a preliminary hearing to determine admissibility) to resolve those objections.
Legal Issues
- Whether the point-of-sale printouts (computer-generated records from the Woolworths Postec system) were capable of being authenticated and admitted as documents under the Evidence Act 1995 (NSW).
- Whether the CCTV copies made by Mr Freeman were capable of being authenticated and admitted as documents under the same Act.
- Whether the interests of justice permitted the prosecution to call Mr Freeman's evidence on appeal when no such evidence had been called in the Local Court below.
- Whether the District Court should revisit Chief Judge Blanch's earlier ruling granting leave to adduce fresh evidence.
Decision
Nicholson SC DCJ began by considering the definition of "document" under the Dictionary to the Evidence Act 1995, which encompasses any record of information, including computer-generated printouts and material from which images can be reproduced. The court found that both the POS printouts and the CCTV copies clearly fell within that definition.
On the POS printouts (MFI 1), the court found that Mr Freeman was personally responsible for retrieving and printing the records from the secure Woolworths database. Because Mr Freeman had direct knowledge of how the database operated, who had access to it, and how the printouts were produced, the court was satisfied he was capable of authenticating those documents. The fact that the underlying data was generated automatically by the Postec system did not displace his capacity to give authentication evidence about the records he personally retrieved and printed.
On the CCTV copies (MFI 2), the court drew a distinction between the original CCTV footage held at the service station and the copies made by Mr Freeman during his attendance at the site. The originals were not before the court and did not require authentication. The documents actually tendered were Mr Freeman's copies, and the court was satisfied on the evidence that he could authenticate those copies as accurate copies of the records kept at the service station.
On the broader interests of justice question, the court rejected the argument that the prosecution should be penalised for not calling Mr Freeman in the Local Court. The authenticity of the documents had not been in issue below. Where a technical point is raised for the first time on appeal, the court held that fairness requires the respondent to be permitted to address it with evidence that was previously unnecessary to call. It then falls to the tribunal of fact to assess the weight and reliability of those documents when the appeal is heard on its merits.
Orders Made
- The appellant's application to reject Mr Freeman's evidence in respect of the point-of-sale documents (MFI 1) was rejected.
- The appellant's application to reject Mr Freeman's evidence in respect of the CCTV copy documents (MFI 2) was rejected.
Key Takeaways
- The District Court confirmed that computer-generated point-of-sale printouts retrieved from a corporate database fall within the definition of "document" under the Evidence Act 1995 (NSW), and that a witness who personally retrieved and printed those records is capable of authenticating them.
- Authentication of CCTV material turns on the specific documents before the court: where copies (rather than originals) are tendered, the person who made the copies can authenticate those copies, provided they have sufficient direct knowledge of how the copies were made.
- A witness need not be the original creator of underlying data to authenticate a document derived from that data; direct knowledge of the retrieval, printing, and custody process may be sufficient.
- Where an appellant raises a technical evidentiary objection on appeal that was not taken in the court below, the interests of justice may require that the respondent be given the opportunity to call evidence in response, even if that evidence was not led at first instance.
- The question of the weight and reliability to be given to authenticated documents remains a matter for the tribunal of fact rehearing the appeal on the merits.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Campbell v Hitchcock [2003] NSWIR Comm 148
- 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