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Supreme Court 4 November 2016

R v Adams (No 5)

[2016] NSWSC 1563

Sexual offencesHomicide
CRIMINAL EVIDENCE

Citation: R v Adams (No 5) [2016] NSWSC 1563
Court: Supreme Court of New South Wales
Date: 4 November 2016
Judge(s): Button J

Background

The accused stood trial before Button J, sitting alone, on a count of murder alleged to have been committed on 24 September 1983. The Crown alleged that the accused strangled the deceased with intent to force her to have sexual intercourse, thereby committing felony murder. Because direct evidence of what occurred was limited, the Crown case relied substantially on tendency evidence from three women who gave accounts of similar conduct by the accused.

One tendency complainant, referred to by the pseudonym Ms Karen Brown, gave evidence that she had been brutally raped and strangled in late July or early August 1978 by a man who drove her away from a nightclub. She said she had memorised the perpetrator's number plate over more than three decades as either DMB 055 or DMB 065.

Two documents were tendered by the Crown to link that recollected number plate to the accused. Both contained representations that the accused owned or used a 1964 Holden sedan with the registration DMB 055. Defence counsel objected to the tender of the relevant representations in both documents, and Button J delivered reasons for the rulings he had made on 17 October 2016.

Legal Issues

  • Whether representations in each document were admissible as business records under section 69 of the Evidence Act 1995 (NSW), satisfying the preconditions in sections 69(1) and 69(2)
  • Whether the "exception to the exception" in section 69(3) excluded the otherwise admissible representations because they were prepared or obtained in connection with an Australian proceeding or investigation
  • Whether, in respect of the second document, the danger of unfair prejudice from admitting the hearsay representation outweighed its probative value under section 137 of the Evidence Act

Decision

Issue 1: Voir Dire Exhibit G (NSW Police Further Crime Information Report)

VD ex G was a NSW Police Further Crime Information Report recording that the accused used a "1964 Holden sedan, brown with white top, DMB 055" in connection with an assault allegation on 16 September 1978. Button J accepted, for the sake of argument only, that the preconditions in sections 69(1) and 69(2) were satisfied (at [33]). However, his Honour held that the representation was excluded by section 69(3) as an "exception to the exception" (at [32]-[33]).

The Crown argued that section 69(3) only applied where the proceeding connected with the representation was the same proceeding in which the tender was sought. Button J rejected that reading on three grounds: the use of the indefinite article "a" or "an" in the sub-section rather than the definite article "the"; the weight of authority following Lewis v Nortex, which adopted a broader construction; and the underlying rationale of the business records exception, which depends on an absence of litigation-related motivation affecting reliability (at [26]-[31]). The document bore all the hallmarks of having been prepared in connection with a particular investigation, and the exclusion therefore applied (at [32]-[33]).

Issue 2: Voir Dire Exhibit H (Police Intelligence Record) -- Section 69(1) and 69(2)

VD ex H was a police intelligence document recording details of the accused's appearance, vehicles, and intersections with the criminal justice system over a number of years. It contained a representation that as at 19 September 1978 the accused was the owner of a "64 holden sedan, brown/white roof, no DMB 055."

Button J was satisfied on the balance of probabilities that the document was a business record of the NSW Police Service. His Honour held that section 69(1)(a) does not require identification of a particular business: it suffices that the document was a record of a business, and the nature of VD ex H made it virtually inconceivable that it had been created for private purposes (at [48]-[51]). As to section 69(2), Button J inferred that the vehicle registration details were ultimately derived from Roads and Maritime Services records through a chain of information, commencing with the act of registration itself, and that this sufficed for the personal knowledge precondition even on a broad reading of section 69(5) (at [59]-[63]).

Issue 3: Voir Dire Exhibit H -- Section 69(3) and Section 137

Button J distinguished VD ex H from VD ex G. He found that VD ex H was a general intelligence overview of the accused rather than a document created for a particular investigation or proceeding (at [70]). The fact that VD ex H was later placed in a box of exhibits relating to the 1983 investigation did not mean it was created in connection with that investigation; what section 69(3) requires is a connection between the preparing or making of the representation itself and a proceeding or investigation, not a connection between the document and one (at [72]). The exclusion in section 69(3) therefore did not apply (at [73]).

On section 137, Button J assessed probative value at its highest, consistent with the approach in R v Shamouil and confirmed in IMM v The Queen: if accepted as accurate, the representation provided an important link between the accused and the tendency allegation central to the Crown case (at [79]). The danger of unfair prejudice was not outweighed by that probative value. Button J distinguished R v Tai, where hearsay representations of the alleged victim of the count on the indictment were at issue, noting that the present tender was a single representation in a business record about a historical aspect of the accused's life (at [80]-[81]). The section 137 objection was rejected (at [84]-[85]).

Orders Made

  • The representation in voir dire exhibit G is inadmissible and its tender is rejected.
  • The tendered representation in voir dire exhibit H is admissible.

Key Takeaways

  • Section 69(3) of the Evidence Act operates as an "exception to the exception" to the business records rule regardless of whether the proceeding or investigation connected to the representation is the same as the proceeding in which tender is sought: the exclusion is engaged by any litigation or investigation that could have affected the reliability of the representation (at [26]-[31]).

  • A document need not be traceable to a single identified business to satisfy section 69(1)(a): it is sufficient that the document was a record created for the purposes of a business, and a court may draw inferences about that character from the document itself under section 183 (at [48]-[49]).

  • Under sections 69(2) and 69(5), a chain of information derived from official registration records can satisfy the personal knowledge precondition for the business records exception, even where the original source documents are no longer available (at [59]-[63]).

  • The critical question under section 69(3) is whether the preparing, obtaining, or making of the particular representation was connected to a proceeding or investigation: placement of a document in an investigation file at a later date does not, of itself, bring a pre-existing general intelligence record within the exclusion (at [71]-[72]).

  • When assessing probative value under section 137, a court assesses that value at its highest, on the assumption that the tribunal of fact will accept the evidence as accurate, before weighing the danger of unfair prejudice, consistent with the approach confirmed by the High Court in IMM v The Queen (at [79]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 37
- Evidence Act 1995 (NSW), ss 48, 55, 59, 69, 69(1), 69(1)(a), 69(1)(b), 69(2), 69(2)(b), 69(3), 69(3)(a), 69(3)(b), 69(5), 137, 142, 183

Cases
- Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (2008) 170 FCR 9; [2008] FCA 1038
- BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2010] NSWSC 1304
- IMM v The Queen (2016) 90 ALJR 529; [2016] HCA 14
- Kang v Kwan [2002] NSWSC 1187
- Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083
- R v Adams [2015] NSWSC 1960
- R v Adams (No 2) [2016] NSWSC 1359
- R v Tai [2016] NSWCCA 207
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- Thaler v Amzalak (No 3) [2013] NSWSC 1315