Citation: [2018] NSWDC 396
Court: District Court of New South Wales
Date: 14 December 2018
Judge(s): Scotting DCJ
Background
This ruling arose during the trial of a prosecution brought against a mine operator. The parties had accumulated a number of documents referred to in the course of the hearing and sought to have them formally tendered into evidence. The court was required to rule on the admissibility of each document in turn.
The documents covered a range of subject matter, including investigator notes, worker training records, an Information Release published by the mining regulator, statutory notices, situation reports, and material disclosed by the prosecutor during the proceedings. The parties disagreed on whether several of these documents should be admitted.
Legal Issues
- Whether investigator notes were admissible as evidence of the truth of their contents
- Whether training records not separately tendered should be admitted
- Whether documents relating to the iterations of a mining regulator's Information Release were admissible or would cause an undue waste of time under section 135(c) of the Evidence Act 1995
- Whether documents produced in response to a statutory section 155 notice were admissible, and on what basis
- Whether situation reports prepared by an inspector should be admitted
- Whether material disclosed by the prosecutor late in proceedings should be admitted
Decision
Issue 1: Investigator notes (MFI F)
The court admitted the relevant extracts of Inspector Richards' notes as evidence of the truth of the matters they recorded (at [3]). The basis for admission on that footing was that both parties to the conversations recorded in those notes had given evidence at trial (at [3]).
Issue 2: Training records (MFI PP)
Some training records had already been separately tendered. The court admitted the remaining documents in the folder without further elaboration, finding no obstacle to their admission (at [4]).
Issue 3: Information Release documents (MFI QQ)
The prosecutor opposed admission of the folder relating to the mining regulator's Information Release, arguing it would cause an undue waste of time under section 135(c) of the Evidence Act 1995. The court rejected that objection. Although the iterations of the Information Release were described as "at best a tangential issue," the court found they were relevant, particularly to questions about disclosure obligations and the reasonable practicability of certain alleged measures (at [5]). Critically, the court found the cross-examination evidence concerning those iterations would be extremely difficult to follow without the underlying documents (at [5]).
Issue 4: Section 155 notice and response (MFI VV)
The court admitted the section 155 notice and the defendant's response, but on a limited basis only. The documents were admitted to establish the content of the defendant's applicable policies and to show that investigators were aware of those policies by virtue of having received the defendant's response (at [6]). The admission was confined to those purposes.
Issue 5: Situation reports (MFI QQQ)
The court applied the same reasoning it had used for MFI QQ. The situation reports were relevant, albeit tangential, and the hearing evidence would be extremely difficult to understand without them (at [7]).
Issue 6: Late disclosure material (MFI RRR)
The court rejected the tender of the late disclosure material. The court noted it had already found, through the course of the trial and earlier rulings, that there were deficiencies in the prosecutor's disclosure obligations, which had led to an adjournment and specific directions being made (at [8]). Having made that finding, the court did not consider it would be assisted by admitting the actual disclosed material into evidence (at [8]).
Orders Made
- MFI F admitted as Exhibit 93
- MFI PP admitted as Exhibit 94
- MFI QQ admitted as Exhibit 95
- MFI VV admitted as Exhibit 96
- MFI QQQ admitted as Exhibit 97
- The tender of MFI RRR rejected
Key Takeaways
- Under section 135(c) of the Evidence Act 1995, a court may exclude evidence that would cause an undue waste of time, but the District Court here declined to exercise that discretion where the documents, though tangential, were necessary to make sense of cross-examination evidence already before the court (at [5], [7]).
- Where both parties to a conversation have given evidence at trial, a court may admit an investigator's contemporaneous notes as evidence of the truth of the matters recorded, not merely as a document that was shown to a witness (at [3]).
- Documents produced in response to a statutory notice may be admitted on a limited and defined basis, confined to particular purposes rather than admitted generally (at [6]).
- A finding, already established during trial, that the prosecutor failed to meet disclosure obligations does not necessarily warrant the further step of admitting the late-disclosed material into evidence (at [8]).
- Each document in a tender schedule receives individual scrutiny, and the court's reasons for admission or rejection can differ markedly depending on the purpose for which the document is tendered and the context already established in the evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not stated